UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
report (Date of earliest event reported):
July
6,
2007
DOLLAR
GENERAL CORPORATION
(Exact
Name of Registrant as Specified in Charter)
Tennessee
|
001-11421
|
61-0502302
|
(State
or Other Jurisdiction
|
(Commission
|
(IRS
Employer
|
of
Incorporation)
|
File
Number)
|
Identification
No.)
|
100
Mission
Ridge, Goodlettsville, Tennessee
|
37072
|
(Address
of Principal
Executive Offices)
|
(Zip
Code)
|
Registrant’s
telephone number, including area code:
(615)
855-4000
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2.):
¨
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Introductory
Note
On
July
6, 2007, Dollar General Corporation, a Tennessee corporation (the “
Company
”),
completed its merger (the “
Merger
”)
with
Buck Acquisition Corp. (“
Merger
Sub
”),
a
wholly owned subsidiary of Buck Holdings, L.P. (“
Parent
”),
pursuant to the terms of the Agreement and Plan of Merger, dated as of March
11,
2007 (the “
Merger
Agreement
”),
by
and among Parent, Merger Sub and the Company. Parent and Merger Sub are
controlled by investment funds affiliated with Kohlberg Kravis Roberts & Co.
L.P.,
GS
Capital Partners, an affiliate of Goldman Sachs,
Citi
Private Equity, and other equity co-investors (collectively, the “
Investors
”).
Item
1.01.
Entry into a Material
Definitive Agreement
1.
Senior Secured Term Loan Facility
Overview
On
July
6, 2007, in connection with the Merger, the Company entered into a credit
agreement and related security and other agreements, with Goldman Sachs Credit
Partners L.P., Citigroup Global Markets Inc., Lehman Brothers Inc. and
Wachovia Capital Markets, LLC, each as joint lead arranger and joint bookrunner,
Citicorp North America, Inc., as administrative agent and collateral agent,
Goldman Sachs Credit Partners L.P., as syndication agent, and Lehman Commercial
Paper Inc. and Wachovia Bank, National Association, as documentation agents,
consisting of a $2,300.0 million senior secured term loan facility (the
“
Term
Loan Credit Facility
”).
The
following is a summary of the material terms of the Term Loan Credit Facility
and is qualified in its entirety by reference to the copy of the Term Loan
Credit Facility that is filed as Exhibit 4.2 to this Current Report on Form
8-K.
The
Term
Loan
Credit Facility
consists
of two tranches, one of which is a “first-loss” tranche, which, in certain
circumstances, is subordinated in right of payment to the other tranche of
the
Term
Loan
Credit Facility
.
The
Company is the borrower under the Term Loan Credit Facility.
The
Term
Loan Credit Facility provides that the Company has the right at any time to
request up to $325.0 million of incremental commitments under one or more
incremental term loan facilities and/or asset-based revolving credit facilities.
The lenders under the Term Loan Credit Facility are not under any obligation
to
provide any such incremental commitments and any such addition of or increase
in
commitments under the Term Loan Credit Facility will be subject to the Company’s
not exceeding certain senior secured leverage ratios and certain other customary
conditions precedent. The Company’s ability to obtain extensions of credit under
these incremental commitments under the Term Loan Credit Facility is also
subject to the same conditions as extensions of credit under the under the
Term
Loan Credit Facility.
Interest
Rate and Fees
Borrowings
under the Term Loan Credit Facility bear interest at a rate equal to an
applicable margin plus, at the Company’s option, either (a) a LIBOR rate
adjusted for certain additional costs or (b) a base rate, in each case plus
a spread. The applicable margin for borrowings is 2.75% with respect to LIBOR
borrowings and 1.75% with respect to base-rate borrowings.
Prepayments
The
credit agreement requires the Company to prepay outstanding term loans, subject
to certain exceptions, with:
·
|
50%
of the Company’s annual excess cash flow (as defined in the Term Loan
Credit Facility) commencing with the fiscal year ending on or about
January 31, 2008 (which percentage will be reduced to 25% and 0%
if the
Company achieves and maintains a total net leverage ratio of 6.0
to 1.0
and 5.0 to 1.0, respectively);
|
·
|
100%
of the net cash proceeds of all non-ordinary course asset sales or
other
dispositions of property in excess of $25.0 million and subject to
the
Company’s right to reinvest the proceeds;
and
|
·
|
100%
of the net cash proceeds of any incurrence of debt, other than proceeds
from debt permitted under the credit
agreement.
|
The
foregoing mandatory prepayments will be applied to the Term Loan Credit Facility
as directed by the credit agreement.
The
Company may voluntarily repay outstanding loans under the Term Loan Credit
Facility at any time without premium or penalty, other than customary “breakage”
costs with respect to LIBOR loans.
Amortization
Beginning
September 30, 2009, the Company is required to repay installments on the loans
under the Term Loan Credit Facility in equal quarterly principal amounts in
an
aggregate amount per annum equal to 1% of the total funded principal amount,
with the balance payable on July 6, 2014.
Guarantee
and Security
Pursuant
to a Guarantee, dated as of July 6, 2007, among the U.S. Guarantors (as defined
below) and Citicorp North America, Inc. (filed as Exhibit 4.3 to this Current
Report on Form 8-K), all obligations under the Term Loan Credit Facility are
unconditionally guaranteed by substantially all of the Company’s existing and
future domestic subsidiaries (excluding certain immaterial subsidiaries and
certain subsidiaries designated by the Company under the credit agreement as
“unrestricted subsidiaries”), referred to, collectively, as U.S.
Guarantors.
Pursuant
to a Security Agreement and a Pledge Agreement, each dated as of July 6, 2007,
each among the Company, the U.S. Guarantors and Citicorp North America, Inc.
(filed as Exhibits 4.4 and 4.5, respectively, to this Current Report on Form
8-K), all obligations under the Term Loan Credit Facility and the guarantees
of
those obligations will be secured by:
·
|
a
second-priority security interest in all existing and after-acquired
inventory, accounts receivable, and other assets arising from such
inventory and accounts receivable, of the Company and each U.S. Guarantor
(the “
Revolving
Facility Collateral”
),
subject to certain exceptions;
|
·
|
a
first priority security interest in, and mortgages on, substantially
all
of the tangible and intangible assets of the Company and each U.S.
Guarantor (other than the Revolving Facility Collateral);
and
|
·
|
a
first-priority pledge of 100% of the capital stock held by the Company,
or
any of the Company’s domestic subsidiaries that are directly owned by us
or one of the U.S. Guarantors and 65% of the voting capital stock
of each
of the Company’s existing and future foreign subsidiaries that are
directly owned by the Company or one of the U.S.
Guarantors.
|
Certain
Covenants and Events of Default
The
credit agreement contains a number of covenants that, among other things,
restrict, subject to certain exceptions, the Company’s ability to:
·
|
incur
additional indebtedness;
|
·
|
pay
dividends and distributions or repurchase the Company’s capital
stock;
|
·
|
make
investments or acquisitions;
|
·
|
repay
or repurchase subordinated indebtedness (including the senior subordinated
notes discussed below) and the senior notes discussed
below;
|
·
|
amend
material agreements governing the Company’s subordinated indebtedness
(including the senior subordinated notes discussed below) or the
Company’s
senior notes discussed below; and
|
·
|
change
the Company’s lines of business.
|
The
credit agreement for the Term Loan Credit Facility also contains certain
customary affirmative covenants and events of default.
Certain
Relationships
The
lenders or their affiliates have in the past engaged, and may in the future
engage, in transactions with and perform services, including commercial banking,
financial advisory and investment banking services, for the Company and its
affiliates in the ordinary course of business for which they have received
or
will receive customary fees and expenses. Funds controlled by GS Capital
Partners, an affiliate of Goldman, Sachs & Co. indirectly own approximately
20.5% of the shares of the Company after the Merger on a fully diluted basis.
Funds managed by Citigroup Private Equity LP, an affiliate of Citigroup Global
Markets Inc. and Citigroup North America, Inc. indirectly own approximately
6.8%
of the shares of the Company after the Merger on a fully diluted basis. In
connection with the Merger, Citigroup Global Markets Inc., Wachovia Capital
Markets, LLC, Goldman, Sachs & Co. and Lehman Brothers Inc. have provided
financial advisory services to, and will receive financial advisory fees from,
the Company, the Investors and their affiliates. Affiliates of the lenders
acted
as initial purchasers of
the
notes
issued under the Indentures described below and participated in other financing
aspects relating to the Merger. Goldman, Sachs & Co. acted as dealer manager
for the tender offer for certain indebtedness refinanced in connection with
the
Merger. Messrs. Adrian Jones and Sumit Rajpal, who have become directors
of the
Company following the Merger, serve as directors of HealthMarkets, Inc. Mr.
Jones also serves as a director of Burger King Holdings, Inc., Education
Management Corporation and Signature Hospital, LLC. Mr. Rajpal also serves
as a
director of USI Holdings Corporation. All such entities are partly or wholly
owned by an affiliate of Goldman, Sachs & Co.
2.
Senior Secured Asset-Based Revolving Credit Facility
Overview
On
July
6, 2007, in connection with the Merger, the Company entered into an ABL credit
agreement and related security and other agreements, with Goldman Sachs Credit
Partners L.P., Citigroup Global Markets Inc., Lehman Brothers Inc. and
Wachovia Capital Markets, LLC, each as joint lead arranger and joint bookrunner,
CIT Capital Securities LLC, as lead arranger of the tranche A-1 loan facility,
The CIT Group/Business Credit, Inc., as administrative agent, collateral agent,
swingline lender and letter of credit issuer, Goldman Sachs Credit Partners
L.P., as syndication agent, and Lehman Commercial Paper Inc. and Wachovia Bank,
National Association, as documentation agents, consisting of a senior secured
asset-based revolving credit facility of up to $1,125.0 million (of which
up to $350.0 million will be available for letters of credit), subject to
borrowing base availability (the “
Asset-Based
Credit Facility
”).
The
following is a summary of the material terms of the Asset-Based Credit Facility
and is qualified in its entirety by reference to the copy of the Asset-Based
Credit Facility that is filed as Exhibit 4.6 to this Current Report on Form
8-K.
The
Company is the primary borrower under the Asset Based Credit Facility and,
in
addition, certain subsidiaries of the Company are designated as borrowers.
The
Asset Based Credit Facility includes borrowing capacity available for letters
of
credit and for short-term borrowings referred to as swingline
loans.
The
Asset
Based Credit Facility provides that the Company has the right at any time to
request up to $325.0 million of incremental commitments under one or more
incremental term loan facilities and/or the Asset Based Credit Facility. The
lenders under the Asset Based Credit Facility are not under any obligation
to
provide any such incremental commitments and any such addition of or increase
in
commitments under the Asset Based Credit Facility will be subject to the
Company’s not exceeding certain senior secured leverage ratios and certain other
customary conditions precedent. The Company’s ability to obtain extensions of
credit under these incremental commitments under the Asset Based Credit Facility
is also subject to the same conditions as extensions of credit under the Asset
Based Credit Facility.
The
amount from time to time available under the Asset Based Credit Facility
(including in respect of letters of credit) shall not exceed the borrowing
base.
The borrowing base equals the sum of (i) 85% of the net orderly liquidation
value of all eligible inventory of the Company and each guarantor thereunder
and
(ii) 90% of all accounts receivable and credit/debit card receivables of
the Company and each co-borrower and each guarantor thereunder, in each case,
subject to a reserve equal to the principal amount of the Company 8 5/8% notes
due 2010 that remain outstanding at any time on or after the closing date and
other customary reserves and eligibility criteria to be agreed. An additional
10% to 12% of the net orderly liquidation value of all eligible inventory of
the
Company and each guarantor thereunder is made available to the Company in the
form of a “last out” tranche in respect of which the Company may borrow up to a
maximum
amount
of
$125.0 million. Borrowings under the Asset Based Credit Facility will be
incurred first under the “last out” tranche, and no borrowings will be permitted
under any other tranche until the “last out” tranche is fully utilized.
Repayments of the Asset Based Credit Facility will be applied to the “last out”
tranche only after all other tranches have been fully paid down. The borrowings
incurred under the “last out” tranche will be at a higher interest rate, as
described under “Interest Rate and Fees” below.
Interest
Rate and Fees
Borrowings
under the Asset Based Credit Facility bear interest at a rate equal to an
applicable margin plus, at the Company’s option, either (a) a LIBOR rate
adjusted for certain additional costs or (b) a base rate, in each case plus
a spread. The initial applicable margin for borrowings (except in the case
of
the “last out” tranche described above) is 1.50% with respect to LIBOR
borrowings and 0.50% with respect to base-rate borrowings and for any “last out”
borrowings is 2.25% with respect to LIBOR borrowings and 1.25% with respect
to
base-rate borrowings. The applicable margins for borrowings under the Asset
Based Credit Facility (except in the case of “last out” borrowings) are subject
to adjustment each quarter based on average daily excess availability under
the
Asset Based Credit Facility.
In
addition to paying interest on outstanding principal under the Asset Based
Credit Facility, the Company is required to pay a commitment fee to the lenders
under the Asset Based Credit Facility in respect of the unutilized commitments
thereunder. The initial commitment fee rate is 0.375% per annum. The commitment
fee rate will be reduced (except with regard to the “last out” tranche) to 0.25%
per annum at any time that excess availability under the Asset Based Credit
Facility is equal to or less than 50% of the aggregate commitments under the
Asset Based Credit Facility. The Company must also pay customary letter of
credit fees.
Prepayments
The
credit agreement for the Asset Based Credit Facility requires the Company to
prepay the Asset Based Credit Facility, subject to certain exceptions,
with:
·
|
100%
of the net cash proceeds of all non-ordinary course asset sales or
other
dispositions of Revolving Facility Collateral (as defined below)
in excess
of $1.0 million and subject to the Company’s right to reinvest the
proceeds; and
|
·
|
to
the extent such extensions of credit exceed the then current borrowing
base (as defined in the credit agreement for the Asset Based Credit
Facility).
|
The
Company may voluntarily repay outstanding loans under the Asset Based Credit
Facility at any time without premium or penalty, other than customary “breakage”
costs with respect to LIBOR loans.
Letters
of Credit
$350.0
million of the Company’s Asset Based Credit Facility is available for letters of
credit.
Amortization
There
is
no amortization under the Asset Based Credit Facility. The entire principal
amounts (if any) outstanding under the Asset Based Credit Facility are due
and
payable in full at maturity, on July 6, 2013, on which day the commitments
thereunder will terminate.
Security
Pursuant
to a Security Agreement, dated as of July 6, 2007, among the Company, the
subsidiary borrowers and The CIT Group/Business Credit, Inc. (filed as Exhibit
4.7 to this Current Report on Form 8-K), all obligations under the Asset Based
Credit Facility are secured by all existing and after-acquired inventory,
accounts receivable, and other assets arising from such inventory and accounts
receivable, of the Company and each subsidiary borrower (the “
Revolving
Facility Collateral
”),
subject to certain exceptions.
Certain
Covenants and Events of Default
The
credit agreement contains a number of covenants that, among other things,
restrict, subject to certain exceptions, the Company’s ability to:
·
|
incur
additional indebtedness;
|
·
|
pay
dividends and distributions or repurchase the Company’s capital
stock;
|
·
|
make
investments or acquisitions;
|
·
|
repay
or repurchase subordinated indebtedness (including the senior subordinated
notes discussed below) and the senior notes discussed
below;
|
·
|
amend
material agreements governing the Company’s subordinated indebtedness
(including the senior subordinated notes discussed below) or the
Company’s
senior notes discussed below; and
|
·
|
change
the Company’s lines of business.
|
Although
the Asset Based Credit Facility does not require the Company to comply with
any
financial ratio maintenance covenants, if it has less than $75.0 million of
excess availability under the Asset Based Credit Facility at any time, the
Company is not permitted to borrow any additional amounts thereunder unless
the
Company meets a financial ratio set forth in the Asset Based Credit
Facility.
The
credit agreement for the
Asset
Based Credit Facility
also
contains certain customary affirmative covenants and events of
default.
See
also
“Certain Relationships” under “1. Senior Secured Term Loan Facility” above.
3.
|
Indentures
and Senior Notes due 2015 and Senior Subordinated Toggle Notes due
2017
|
Overview
On
July
6, 2007, Merger Sub issued $1,175,000,000 aggregate principal amount of 10.625%
senior notes due 2015 (the “
senior
notes
”),
which
mature on July 15, 2015 pursuant to an indenture, dated as of July 6, 2007
(the
“
Senior
Indenture
”),
among
the Company, Merger Sub, the guarantors party thereto and Wells Fargo Bank,
National Association, as trustee, and $725,000,000 aggregate principal amount
of
11.875%/12.625% senior subordinated toggle notes due 2017 (the “
senior
subordinated notes
”),
which
mature on July 15, 2017, pursuant to an indenture, dated as of July 6, 2007
(the
“
Senior
Subordinated Indenture
”),
among
the Company, Merger Sub, the guarantors party thereto and Wells Fargo Bank,
National Association, as trustee. The senior notes and the senior subordinated
notes are collectively referred to herein as the “
notes
.”
The
Senior Indenture and the Senior Subordinated Indenture are collectively referred
to herein as the “
indentures
.”
The
following is a summary of the material terms of the indentures and is qualified
in its entirety by reference to the copies of the Senior Indenture and the
Senior Subordinated Indenture that are filed as Exhibits 4.8 and 4.9,
respectively, to this Current Report on Form 8-K.
Interest
on the senior subordinated notes will be payable in cash. Interest on the notes
is payable on January 15 and July 15 of each year, commencing on January 15,
2008. Cash interest on the senior subordinated notes will accrue at a rate
of
11.875% per annum, and PIK interest (as such term is defined below) will accrue
at a rate of 12.625% per annum. The initial interest payment on the toggle
notes
will be payable in cash. For any interest period thereafter through July 15,
2011, the Company may elect to pay interest on the toggle notes (i) in cash,
(ii) by increasing the principal amount of the toggle notes or issuing new
toggle notes (“
PIK
interest
”)
or
(iii) by paying interest on half of the principal amount of the toggle notes
in
cash interest and half in PIK interest. After July 15, 2011, all interest on
the
toggle notes will be payable in cash.
The
following is a brief description of the terms of the notes and the Senior
Indenture and Senior Subordinated Indenture.
Ranking
The
senior notes are the Company’s senior unsecured obligations and rank senior in
right of payment to any future subordinated indebtedness; rank equally in right
of payment with all of the Company’s existing and future senior indebtedness;
are effectively subordinated to all of the Company’s existing and future secured
debt (including obligations under the new credit facilities described above)
to
the extent of the value of the collateral security such debt; and are
structurally subordinated to all existing and future indebtedness and other
liabilities of the Company’s non-guarantor subsidiaries (other than indebtedness
and liabilities owed to the Company or one of its subsidiary guarantors (as
such
term is defined below)).
The
senior subordinated notes are the Company’s unsecured senior subordinated
obligations and are subordinated in right of payment to any existing and future
senior debt, including the new credit facilities described above and the senior
notes; rank equally in right of payment with all of the Company’s existing and
future senior subordinated debt and other obligations that are not expressly
made senior by the terms of the senior subordinated notes; are effectively
subordinated to all of the Company’s existing and future secured debt (including
obligations under the new credit facilities described above) to the extent
of
the value of the collateral security such debt; and are structurally
subordinated to all existing and future indebtedness and other liabilities
of
the Company’s non-guarantor subsidiaries (other than indebtedness and
liabilities owed to the Company or one of its subsidiary guarantors (as such
term is defined below)).
Guarantees
The
notes
are fully and unconditionally guaranteed by each of the Company’s existing and
future direct or indirect wholly owned domestic subsidiaries that guarantees
the
Company’s obligations under its senior secured credit facilities. Such
subsidiary guarantors are collectively referred to herein as the “subsidiary
guarantors,” and such subsidiary guarantees are collectively referred to herein
as the “subsidiary guarantees.”
Each
subsidiary guarantee of the senior notes ranks senior in right of payment to
all
existing and future subordinated indebtedness of the subsidiary guarantor;
ranks
equally in right of payment with all existing and future senior indebtedness
of
the subsidiary guarantor; is effectively subordinated in right of payment to
all
of the applicable subsidiary guarantor’s existing and future secured debt
(including the applicable subsidiary guarantor’s guarantee under the new credit
facilities described above) to the extent of the value of the collateral
securing such indebtedness and is effectively subordinated in right of payment
to all existing and future indebtedness and other liabilities of any subsidiary
of a subsidiary guarantor that is not also a guarantor of the notes.
Each
subsidiary guarantee of the senior subordinated notes will be subordinated
in
right of payment to all existing and future senior indebtedness of the
subsidiary guarantor; ranks equally in right of payment with all existing and
future senior subordinated indebtedness of the subsidiary guarantor; is
effectively subordinated in right of payment to all of the applicable subsidiary
guarantor’s existing and future secured debt (including the applicable
subsidiary guarantor’s guarantee under the new credit facilities described
above) to the extent of the value of the collateral securing such indebtedness
and is effectively subordinated in right of payment to all existing and future
indebtedness and other liabilities of any subsidiary of a subsidiary guarantor
that is not also a guarantor of the notes. Any subsidiary guarantee of the
notes
will be released in the event such subsidiary guarantee is released under the
senior secured credit facilities.
Optional
Redemption
Senior
Notes
At
any
time prior to July 15, 2011, the Company may redeem all or a part of the senior
notes, at a redemption price equal to 100% of the principal amount of the senior
notes redeemed plus the greater of (1) 1.0% of the principal amount of the
senior notes; and (2) the excess, if any, of (a) the present value at such
redemption date of (i) the redemption price of the senior notes at July 15,
2011
(as set forth in the table appearing below), plus (ii) all required interest
payments due on the senior notes through July 15, 2011 (excluding accrued but
unpaid interest to such redemption date), computed using a discount rate equal
to the applicable treasury rate as of such redemption date plus 50 basis points;
over (b) the then outstanding principal amount of the senior notes (as of,
and
plus accrued and unpaid interest and additional interest, if any, to, the date
of redemption), subject to the rights of holders of senior notes on the relevant
record date to receive interest due on the relevant interest payment date.
On
and
after July 15, 2011, the Company may redeem the senior notes, in whole or in
part, at the redemption prices (expressed as percentages of the principal amount
of the senior notes to be redeemed) set forth below, plus accrued and unpaid
interest thereon and additional interest, if any, to the applicable redemption
date, subject to the right of holders of senior notes of record on the relevant
record date to receive interest due on the relevant interest payment date,
if
redeemed during the twelve month period beginning on July 15 of each of the
years indicated below:
Year
|
Percentage
|
2011
|
105.313%
|
2012
|
102.656%
|
2013
and thereafter
|
100.000%
|
In
addition, until July 15, 2010, the Company may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of senior notes
at
a redemption price equal to 110.625% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and special interest, if any, to the
applicable redemption date, subject to the right of holders of senior notes
of
record on the relevant record date to receive interest due on the relevant
interest payment date, with the net cash proceeds of one or more equity
offerings; provided that at least 50% of the sum of the original aggregate
principal amount of senior notes issued under the Senior Indenture and the
original principal amount of any additional notes that are senior notes issued
under the Senior Indenture after the issue date remains outstanding immediately
after the occurrence of each such redemption; provided further that each such
redemption occurs within 90 days of the date of closing of each such equity
offering.
Senior
Subordinated Notes
At
any
time prior to July 15, 2012, the Company may redeem all or a part of the senior
subordinated notes, at a redemption price equal to 100% of the principal amount
of the senior subordinated notes redeemed plus the greater of (1) 1.0% of the
principal amount of the senior subordinated notes; and (2) the excess, if any,
of (a) the present value at such redemption date of (i) the redemption price
of
the senior subordinated notes at July 15, 2012 (as set forth in the table
appearing below), plus (ii) all required interest payments due on the senior
subordinated notes through July 15, 2012 (excluding accrued but unpaid interest
to such redemption date), computed using a discount rate equal to the applicable
treasury rate as of such redemption date plus 50 basis points; over (b) the
then
outstanding principal amount of the senior subordinated notes (as of, and plus
accrued and unpaid interest and additional interest, if any, to, the date of
redemption), subject to the rights of holders of senior subordinated notes
on
the relevant record date to receive interest due on the relevant interest
payment date.
On
and
after July 15, 2012, the Company may redeem the senior subordinated notes,
in
whole or in part, at the redemption prices (expressed as percentages of the
principal amount of the senior subordinated notes to be redeemed) set forth
below, plus accrued and unpaid interest thereon and additional interest, if
any,
to the applicable redemption date, subject to the right of holders of senior
subordinated notes of record on the relevant record date to receive interest
due
on the relevant interest payment date, if redeemed during the twelve month
period beginning on July 15 of each of the years indicated below:
Year
|
Percentage
|
2012
|
105.938%
|
2013
|
102.958%
|
2014
|
101.979%
|
2015
and thereafter
|
100.000%
|
In
addition, until July 15, 2010, the Company may, at its option, on one or more
occasions
redeem up to 35% of the aggregate principal amount of senior subordinated
notes
at a redemption price equal to 111.875% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon and special interest, if
any,
to the applicable redemption date, subject to the right of holders of senior
subordinated notes of record on the relevant record date to receive interest
due
on the relevant interest payment date, with the net cash proceeds of one
or more
equity offerings; provided that at least 50% of the sum of the original
aggregate principal amount of senior subordinated notes issued under the
Senior
Subordinated Indenture and the original principal amount of any additional
notes
that are senior subordinated notes issued under the Senior Subordinated
Indenture after the issue date remains outstanding immediately after the
occurrence of each such redemption; provided further that each such redemption
occurs within 90 days of the date of closing of each such equity
offering.
Change
of Control
Upon
the
occurrence of a change of control, which is defined in the Indentures each
holder of the notes has the right to require the Company to repurchase some
or
all of such holder’s notes at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
repurchase date.
Covenants
The
Indentures contain covenants limiting, among other things, the Company’s ability
and the ability of its restricted subsidiaries to (subject to certain
exceptions):
·
|
incur
additional debt, issue disqualified stock or issue certain preferred
stock;
|
·
|
pay
dividends on or make certain distributions and other restricted payments;
|
·
|
create
certain liens or encumbrances;
|
·
|
enter
into transactions with affiliates;
|
·
|
limit
ability of restricted subsidiaries to make payments to the Company;
|
·
|
consolidate,
merge, sell or otherwise dispose of all or substantially all of the
Company’s assets; and
|
·
|
designate
the Company’s subsidiaries as unrestricted subsidiaries.
|
Events
of Default
The
Indentures also provide for events of default which, if any of them occurs,
would permit or require the principal of and accrued interest on the notes
to
become or to be declared due and payable.
See
also
“Certain Relationships” under “1. Senior Secured Term Loan Facility” above.
4.
|
Registration
Rights Agreement
|
On
July
6, 2007, Merger Sub, the Company and the subsidiary guarantors entered into
a
registration rights agreement with respect to the notes with Goldman, Sachs
& Co., Citigroup Global Markets Inc., Wachovia Capital Markets, LLC, and
Lehman Brothers Inc., as initial purchasers of the notes (the “
Initial
Purchasers
”).
The
following is a summary of the material terms of the registration rights
agreement and is qualified in its entirety by reference to the copy of the
registration rights agreement that is filed as Exhibit 4.10 to this Current
Report on Form 8-K. In the registration rights agreement, the Company has agreed
that it will use its commercially reasonable efforts to register with the
Securities and Exchange Commission notes having substantially identical terms
as
the senior notes and notes having substantially identical terms as the senior
subordinated notes as part of offers to exchange freely tradable exchange notes
for each such series of notes.
The
Company is required to use its commercially reasonable efforts to cause the
exchange offer to be completed or, if required, to have one or more shelf
registration statements declared effective, within 270 days after the issue
date
of each of the notes.
If
the
Company fails to meet this target (a “
registration
default
”),
the
annual interest rate on the applicable series of notes will increase by 0.25%.
The annual interest rate on the applicable series of notes will increase by
an
additional 0.25% for each subsequent 90-day period during which the registration
default continues, up to a maximum additional interest rate of 1.0% per year
over the applicable interest rate described above. If the registration default
is corrected, the applicable interest rate on such notes will revert to the
original level.
See
also
“Certain Relationships” under “1. Senior Secured Term Loan Facility”
above.
5.
|
David
Beré Employment Agreement
|
On
July
6, 2007, the Company entered into an employment agreement with David L. Beré to
serve as interim Chief Executive Officer until the earlier of (i) the Company’s
appointment of a new Chief Executive Officer or (ii) December 31, 2007. The
employment agreement may be extended by mutual agreement of the parties for
a
period of three months following the date such new chief executive officer’s
employment with the Company commences and may also be extended to provide for
Mr. Beré ’s services as President and Chief Operating Officer. Mr. Beré has also
elected to participate in the Company’s newly established 2007 Stock Incentive
Plan for Key Employees of Dollar General Corporation and its Affiliates; the
information set forth in Section 6 of Item 1.01 is incorporated by
reference into this Section 5.
Mr.
Beré’s annual base salary will be subject to discretionary annual increases upon
review by the Board of Directors, and Mr. Beré will be eligible to earn an
annual bonus as a percentage of his base salary with respect to each fiscal
year, based upon the achievement of annual performance targets established
by
the Board of Directors. With respect to the 2007 fiscal year, so long as Mr.
Beré remains employed through the date required under the Bonus Plan to receive
payment of a bonus thereunder, Mr. Beré is eligible to earn (i) a threshold
bonus; (ii) a target bonus; or (iii) a maximum bonus, all defined as a
percentage of base salary, payable in each case in accordance with the terms
of
the Bonus Plan and based on the achievement of certain annual performance
targets.
If
the
term of employment extends beyond the initial term, but not beyond the end
of
fiscal year 2008, whether or not Mr. Beré remains employed through the relevant
date required under the Bonus Plan to receive payments thereunder, the Company
will provide Mr. Beré with annual bonus opportunities in 2008 that are
consistent with those applicable to the 2007 fiscal
year,
pro
rated for the number of months that the term of Mr. Beré’s employment extends
into fiscal year 2008 relative to 12 months. If the term extends beyond fiscal
year 2008, Mr. Beré shall be eligible for incentive compensation as determined
under the Bonus Plan for officers of the Company, based on criteria established
by the Board of Directors.
If
Mr.
Beré's employment is terminated by the Company without “cause” (as defined in
the agreement) or by Mr. Beré for “good reason” (as defined in the agreement),
Mr. Beré would, subject to compliance with certain confidentiality,
non-competition and non-solicitation covenants contained in the agreement and
execution of a general release of claims on behalf of the Company, be
(i) entitled to the accrued rights under the Bonus Plan; (ii) an
amount equal to the product of (x) two times Mr. Beré's base salary in
effect immediately prior to July 6, 2007, plus (y) two times the amount of
Mr.
Beré’s annual target bonus amount Mr. Beré was eligible to earn under the Bonus
Plan as in effect immediately prior to July 6, 2007; and (iii) a lump sum
payment in an amount equal to two times the annual contribution made by the
Company for Mr. Beré’s participation in Company’s benefit programs, as defined
in the agreement.
6.
|
2007
Stock Incentive Plan for Key Employees of Dollar General Corporation
and
its Affiliates
|
In
connection with the Merger, the Company established the Dollar General
Corporation 2007 Stock Incentive Plan (the “
Plan
”).
The
Plan is designed to promote the long term financial interests and growth of
the
Company and its subsidiaries by attracting and retaining management and other
personnel and key service providers with the training, experience and ability
to
enable them to make a substantial contribution to the success of the Company’s
business, motivate management personnel by means of growth-related incentives
to
achieve long range goals and further the alignment of interests of participants
with those of the stockholders of the Company through opportunities for
increased stock, or stock-based ownership in the Company.
The
Plan
permits the granting of awards covering 4% of the fully diluted equity of the
Company immediately after consummation of the Merger. A portion of the options
under the Plan will vest solely based upon continued employment over a specific
period of time (“
Time
Vesting Options
”),
and a
portion of the options will vest based both upon continued employment over
a
specific period of time and upon the achievement of predetermined performance
targets over time (“
Performance
Vesting Options
”).
Options under the Plan will be awarded pursuant to a Stock Option Agreement
with
the Company (the “
Option
Agreement
”).
A
substantial majority of the options will have an exercise price which is the
equivalent of $5.00 per share. The Named Executive Officers, David Beré, David
Tehle, Beryl Buley, Kathleen Guion, and Challis Lowe have been awarded options
of 2,250,000; 1,100,000; 875,000; 875,000; and 675,000,
respectively.
7.
|
Management
and Indemnity Agreements
|
On
July
6, 2007, upon consummation of the Merger, certain affiliates of the Investors
entered into a management agreement and an indemnity agreement with the Company.
Pursuant to the management agreement, such entities are entitled to receive
an
aggregate annual management fee of $5 million, which amount will increase 5%
annually, and reimbursement of out-of-pocket expenses incurred in connection
with the provision of services pursuant to the agreement. The management
agreement will continue in effect from year to year, unless terminated upon
a
change of control of the Company or in connection with an initial public
offering of the Company or if the parties mutually agree to terminate the
agreement. In addition,
pursuant
to the management agreement, such entities also received aggregate transaction
fees of $75 million in connection with certain services provided in connection
with the Merger and related transactions. In addition,the management agreement
provides that these entities will be entitled to receive a fee equal to 1%
of
the gross transaction value in connection with certain subsequent financing,
acquisition, disposition, and change of control transactions, as well as
a
termination fee based on the net present value of future payment obligations
under the management agreement in the event of an initial public offering
or
under certain other circumstances. Pursuant to the terms of the indemnity
agreement, the Company has agreed to customary exculpation and indemnification
provisions in favor of these entities and their affiliates.
In
connection with the Merger, certain members of management entered into
agreements with the Company and/or Parent, pursuant to which they elected to
invest in the Company, as the surviving corporation in the Merger, through
a
cash investment, a rollover of employee stock options, a rollover of shares
of
common stock of the Company, or a combination thereof.
9.
|
Stockholder
Agreements
|
In
connection with the Merger, certain members of management entered into
stockholder agreements with the Company. The stockholder agreements, among
other
things, contain agreements among the parties with respect to restrictions on
the
transfer of the shares, including tag along rights, drag along rights,
registration rights (including customary indemnification provisions) and call
options and put options.
10.
Supplemental
Indenture
As
previously disclosed, Merger
Sub received the requisite consents to the proposed amendments to the indenture
pursuant to which the Company’s 8 5/8% Notes due June 15, 2010 were issued. On
July 7, 2006, a supplemental indenture to effect such amendments was executed
and delivered. The amendments contained in the supplemental indenture have
now
become operative upon the Company’s purchase of the tendered notes, which
occurred on July 7, 2006. The amendments contained in the supplemental indenture
eliminate substantially all of the restrictive covenants contained in that
indenture. The foregoing summary of the supplemental indenture is qualified
in
its entirety by reference to the copy of the supplemental indenture that is
filed as Exhibit 4.11 to this Current Report on Form 8-K.
Item
1.02.
Termination of a
Material Definitive Agreement
.
1.
Existing
Senior Secured Credit Facilities
In
connection with the Merger, on July 6, 2007, the Company repaid in full all
outstanding term loans and revolving loans, together with interest and all
other
amounts due in connection with such repayment, under the Seconded Amended and
Restated Credit Agreement, dated as of June 28, 2006, by and among, the Company,
the lenders from time to time parties thereto, SunTrust Bank, Bank of America,
N.A., Keybank National Association, Regions Bank and U.S. Bank National
Association, (filed as an exhibit to the Company’s Current Report on Form 8-K
dated June 28, 2006 and filed July 3, 2006), as amended by the First Amendment
to Second Amended and Restated Revolving Credit Agreement, dated as of December
8, 2006, by and among Dollar General Corporation, the lenders from time to
time
parties thereto, SunTrust Bank, Bank of America, N.A., Keybank National
Association, Regions Bank and U.S. Bank National Association (filed as an
exhibit to the Company’s Annual Report on Form 10-K for the year ended February
2, 2007) . In addition, in connection with the Merger, commercial letters of
credit totaling $143,743,672.70 issued by Bank of America, N.A., LaSalle Bank
National Association and US Bank National Association, and standby letters
of
credit totaling $40,692,000 issued by Bank of America, N.A., SunTrust Bank
(as
Issuing Bank and Administrative Agent under the Amended and Restated Revolving
Credit Agreement dated June
30,
2004)
and Regions Bank, will be terminated and replaced by new letters of credit
under
the Asset Based Credit Facility on July 6, 2007.
2.
David
Perdue Employment Agreement
As
previously disclosed, the Company's Chairman and Chief Executive Officer, David
Perdue, resigned effective upon consummation of the Merger on July 6, 2007.
Mr.
Perdue's employment under the terms of his employment agreement with the Company
was terminated pursuant to such resignation. Mr. Perdue had been employed with
the Company pursuant to an Amended and Restated Employment Agreement, effective
as of September 18, 2006, by and between the Company and Mr. Perdue (filed
as an
exhibit to the Company’s Current Report on Form 8-K dated September 18, 2006 and
filed September 19, 2006 and incorporated herein by this reference). The Company
and Mr. Perdue have agreed to treat Mr. Perdue's resignation as being for “Good
Reason” (as defined in Mr. Perdue's employment agreement). Upon his execution of
a release, Mr. Perdue will be entitled to certain severance payments and
benefits which are triggered by a resignation for Good Reason under his
employment agreement, subject to Mr. Perdue's continued compliance with certain
terms of the employment agreement (including certain restrictive covenants
set
forth therein). He will also be entitled to payments under a supplemental
executive retirement plan (filed as an exhibit to the Company’s Current Report
on Form 8-K dated and filed January 25, 2006 and incorporated herein by this
reference).
Item
2.03.
Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of
a Registrant.
The
information set forth in Sections 1, 2 and 3 of Item 1.01 of this Current Report
on Form 8-K is incorporated by reference into this Item 2.03.
Item
3.03.
Material Modification
to Rights of Security Holders.
The
information set forth in Sections 1, 2, 3, and 4 of Item 1.01. and Item 5.03.
is
incorporated by reference into this Item 3.03.
Item
5.02.
Departure of
Directors or Principal Officers; Election of Directors; Appointment of Principal
Officers; Compensatory Arrangements of Certain Officers.
In
connection with the consummation of the Merger and pursuant to the terms of
the
Merger Agreement, each of our directors (other than David Beré) who was a member
of our Board of Directors immediately prior to the Merger has either resigned
or
been removed, and has been replaced with the members of the Board of Directors
of Merger Sub. Accordingly, our new Board of Directors is comprised of the
following individuals: Michael Calbert, a member of Kohlberg Kravis Roberts
& Co. L.P., Raj Agrawal, a principal of Kohlberg Kravis Roberts & Co.,
L.P., Adrian Jones, a managing director of Goldman, Sachs & Co., and Sumit
Rajpal, a vice president of Goldman, Sachs & Co. In addition, David Beré
will continue to serve as a director of the Company.
As
a
result of their respective positions with affiliates of the Investors, one
or
more of the directors may be deemed to have an indirect material interest in
the
Management Agreement and Indemnity Agreement, each of which was entered into
by
the Company on July 6, 2007, and the information set forth in Section 7 of
Item
1.01 is accordingly incorporated by reference into this Item 5.02.
In
connection with the consummation of the Merger, the Company’s Chairman and Chief
Executive Officer, David A. Perdue has resigned and David Beré, the Company’s
President
and
Chief
Operating Officer, has been appointed the interim Chief Executive Officer,
effective as of July 6, 2007, while a search for a new Chief Executive Officer
is undertaken.
The
Company has, in connection with Mr. Beré’s appointment as interim Chief
Executive Officer, entered into an amended and restated employment agreement
with Mr. Beré. In addition, Mr. Beré has, in connection with the consummation of
the Merger, rolled options or equity stock to acquire common stock of the
surviving corporation and has entered into a stockholder agreement with the
Company. He will also, along with the Company’s other executive officers and
certain other employees, participate in the Plan. The information set forth
in
Sections 5, 6, 8 and 9 of Item 1.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 5.02.
Item
5.03.
Amendments to
Articles of Incorporation or By-laws; Change in Fiscal
Year
In
connection with the consummation of the Merger, the Company’s charter and
by-laws were amended and restated, effective July 6, 2007, so that they read
in
the form attached as an exhibit to the Merger Agreement, in the case of the
charter, and, with respect to the by-laws, in their entirety as the by-laws
of
Merger Sub read immediately prior to the effective time of the Merger in
accordance with the Merger Agreement. Copies of the Company’s Amended and
Restated Charter and Amended and Restated By-laws of the Company are attached
as
Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and
are
incorporated herein by reference.
Item
9.01
Financial
Statements and Exhibits.
(d)
Exhibits
.
See
the
Index of Exhibits that immediately follows the signature page to this Current
Report on Form 8-K, which is incorporated herein by reference.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
DOLLAR
GENERAL
CORPORATION
By:
/s/
Susan S. Lanigan
Name:
Susan S. Lanigan
Title: Executive Vice President and General
Counsel
Date:
July 12, 2007
INDEX
OF EXHIBITS
Number
|
Exhibit
|
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of the
Company
|
3.2
|
Amended
and Restated By-laws of the Company
|
4.1
|
Tenth
Supplemental Indenture, dated July 6, 2007, among the Company, the
subsidiary guarantors named therein and U.S. Bank National Association
(successor to Wachovia Bank, National Association, formerly known
as First
Union National Bank).
|
4.2
|
Credit
Agreement, dated as of July 6, 2007, among Dollar General Corporation,
as
Borrower, Citigroup North America, Inc., as Administrative Agent,
and the
other lending institutions form time to time party
thereto.
|
4.3
|
Guarantee,
dated as of July 6, 2007, by certain domestic subsidiaries of Dollar
General Corporation, as Guarantors.
|
4.4
|
Security
Agreement, dated as of July 6, 2007, among Dollar General Corporation
and
certain domestic subsidiaries of Dollar General Corporation, as Grantors,
and Citigroup North America, Inc., as Collateral Agent
.
|
4.5
|
Pledge
Agreement, dated as of July 6, 2007, among Dollar General Corporation
and
certain domestic subsidiaries of Dollar General Corporation, as Pledgors,
and Citigroup North America, Inc., as Collateral Agent.
|
4.6
|
ABL
Credit Agreement, dated as of July 6, 2007, among Dollar General
Corporation, as Parent Borrower, certain domestic subsidiaries of
Dollar
General Corporation, as Subsidiary Borrowers, The CIT Group/Business
Credit, Inc., as ABL Administrative Agent, and the other lending
institutions form time to time party thereto.
|
4.7
|
ABL
Security Agreement, dated as of July 6, 2007, among Dollar General
Corporation and certain domestic subsidiaries of Dollar General
Corporation, as Grantors, and The CIT Group/Business Credit, Inc.,
as ABL
Collateral Agent.
|
4.8
|
Senior
Indenture, dated July 6, 2006, among Buck Acquisition Corp., Dollar
General Corporation, the guarantors named therein and Well Fargo
Bank,
N.A., as Trustee.
|
4.9
|
Senior
Subordinated Indenture, dated July 6, 2006, among Buck Acquisition
Corp.,
Dollar General Corporation, the guarantors named therein and Well
Fargo
Bank, N.A., as Trustee.
|
4.10
|
Registration
Rights Agreement, dated July 6, 2006, among Buck Acquisition Corp.,
Dollar
General Corporation, the guarantors named therein and the initial
purchasers named therein.
|
4.11
|
Form
of 10.625% Senior Notes due 2015 (included in Exhibit
4.8)
|
4.12
|
Form
of 11.875% / 12.625% Senior Subordinated Toggle Notes (included in
Exhibit
4.9)
|
10.1
|
Amended
and Restated Employment Agreement, dated July 6, 2007, by and between
Dollar General Corporation and David
Beré.
|
EXHIBIT
3.1
AMENDED
AND RESTATED CHARTER
OF
DOLLAR
GENERAL CORPORATION
1.
|
The name of the corporation shall be Dollar General
Corporation.
|
2.
|
The
corporation is for profit.
|
3.
The
duration of the corporation is perpetual.
4.
The
street address and ZIP code of the corporation’s principal office in Tennessee
will be:
100
Mission Ridge
Goodlettsville,
Tennessee 37072
County
of
Davidson
5.
(a)
The
name
of the registered agent is Corporation Service Company.
(b)
|
The
street address, ZIP code and county of the corporation’s registered office
and registered agent in Tennessee shall
be:
|
Corporation
Service Company
2908
Poston Avenue
Nashville,
Tennessee 37203
County
of
Davidson
6.
The
corporation is organized to do any and all things and to exercise any and all
powers, rights, and privileges that a corporation may now or hereafter be
organized to do or to exercise under the Tennessee Business Corporation Act,
as
amended from time to time.
7.
The
maximum shares of stock the corporation is authorized to issue is:
(a)
|
1,000,000,000
shares of common stock, $0.50 par value per share, which shall be entitled
to one vote per share and, upon dissolution of the corporation, shall
be
entitled to receive the net assets of the
corporation.
|
(b)
|
1,000,000
shares of Preferred Stock. Pursuant to TCA §§ 48-16-101 and 102, the
preferences, limitations and relative rights of the Preferred Stock
shall
be determined by the Board of Directors.
|
8.
|
The
shareholders of the corporation shall not have preemptive
rights.
|
9.
The
business and affairs of the corporation shall be managed by a Board of
Directors. The number of Directors and their terms shall be specified in the
by-laws of the corporation.
10.
To
the
fullest extent permitted by the Tennessee Business Corporation Act as in effect
on the date hereof, and as hereafter amended from time to time, a director
of
the corporation shall not be liable to the corporation or its shareholders
for
monetary damages for breach of fiduciary duty as a director. If the Tennessee
Business Corporation Act or any successor statute is amended after adoption
of
this provision to authorize corporate action further eliminating or limiting
the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted
by
the Tennessee Business Corporation Act, as so amended from time to time, or
such
successor statute. Any repeal or modification of this Article 10 by the
shareholders of the corporation shall not affect adversely any right or
protection of a director of the corporation existing at the time of such repeal
or modification or with respect to events occurring prior to such
time.
11.
The
corporation shall indemnify every person who is or was a party or is or was
threatened to be made a party to any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that he or
she
is or was a director or officer or is or was serving at the request of the
corporation as a director, officer, employee, agent, or trustee of another
corporation or of a partnership, joint venture, trust, employee benefit plan,
or
other enterprise, including service on a committee formed for any purpose (and,
in each case, his or her heirs, executors, and administrators), against all
expense, liability, and loss (including counsel fees, judgments, fines, ERISA
excise taxes, penalties, and amounts paid in settlement) actually and reasonably
incurred or suffered in connection with such action, suit, or proceeding, to
the
fullest extent permitted by applicable law, as in effect on the date hereof
and
as hereafter amended. Such indemnification may include advancement of expenses
in advance of final disposition of such action, suit, or proceeding, subject
to
the provision of any applicable statute.
The
indemnification and advancement of expenses provisions of this Article 11 shall
not be exclusive of any other right that any person (and his or her heirs,
executors, and administrators) may have or hereafter acquire under any statute,
this Charter, the corporation’s Bylaws, resolution adopted by the shareholders,
resolution adopted by the Board of Directors, agreement, or insurance, purchased
by the corporation or otherwise, both as to action in his or her official
capacity and as to action in another capacity. The corporation is hereby
authorized to provide for indemnification and advancement of expenses through
its Bylaws, resolution of shareholders, resolution of the Board of Directors,
or
agreement, in addition to that provided by this Charter.
12.
|
The
name and address of the Incorporator is:
|
Howard
H.
Lamar III
2700
AmSouth Center
Nashville,
Tennessee 37238-2700
This
Amended and Restated Charter of Dollar General Corporation shall be effective
when filed with the Office of the Tennessee Secretary of State.
IN
WITNESS WHEREOF, the corporation has caused this Amended and Restated Charter
to
be signed by its duly authorized officer set forth below.
DOLLAR
GENERAL
CORPORATION
By:
/s/
Susan Lanigan
Its:
Executive Vice
President, General Counsel
EXHIBIT
3.2
BY-LAWS
of
BUCK
ACQUISITION CORP.
ARTICLE
I
MEETINGS
OF STOCKHOLDERS
Section
1.
Place
of Meeting.
Meetings
of the stockholders of Buck Acquisition Corp. (the “Corporation”) shall be held
at such place either within or without the State of Tennessee as the Board
of
Directors may determine.
Section
2.
Annual
and Special Meetings
.
Annual
meetings of stockholders shall be held, at a date, time and place fixed by
the
Board of Directors and stated in the notice of meeting, to elect a Board of
Directors and to transact such other business as may properly come before the
meeting. Special meetings of the stockholders may be called by the President
for
any purpose and shall be called by the President or Secretary if directed by
the
Board of Directors or requested in writing by the holders of not less than
25%
of the capital stock of the Corporation. Each such stockholder request shall
state the purpose of the proposed meeting.
Section
3.
Notice
.
Except
as otherwise provided by law, at least 10 and not more than 60 days before
each
meeting of stockholders, written notice of the time, date and place of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given to each stockholder.
Section
4.
Quorum
.
At any
meeting of stockholders, the holders of record, present in person or by proxy,
of a majority of the Corporation's issued and outstanding capital stock shall
constitute a quorum for the transaction of business, except as otherwise
provided by law. In the absence of a quorum, any officer entitled to preside
at
or to act as secretary of the meeting shall have power to adjourn the meeting
from time to time until a quorum is present.
Section
5.
Voting
and Proxies
.
Except
as otherwise provided by law, all matters submitted to a meeting of stockholders
shall be decided by vote of the holders of record, present in person or by
proxy, of a majority of the Corporation's issued and outstanding capital stock.
Every stockholder entitled to vote at any meeting may do so either in person
or
by written proxy, which proxy shall be filed with the secretary of the meeting
before being voted.
Section
6.
Actions
of Stockholders Without Meeting
.
Unless
otherwise provided by the Charter or these bylaws, any action required or
permitted to be taken at any meeting of the stockholders may be taken without
a
meeting if all stockholders entitled to vote on the action consent to taking
such action without a meeting, the action is evidenced by a written consent
describing the action taken, the written consent is signed by each stockholder
entitled to vote on the action in one or more counterparts indicating each
signing stockholder’s vote or abstention on the action, and the written consent
is delivered to the Corporation for inclusion in the minutes
or
filing
with the corporate records. As evidenced by the foregoing written consent
action, the affirmative vote of the number of shares of stock of the Corporation
that would be necessary to authorize or take such action at a meeting of
the
stockholders shall be the act of the stockholders.
ARTICLE
II
DIRECTORS
Section
1.
Number,
Election and Removal of Directors
.
At any
time and from time to time, the number of Directors that shall constitute the
Board of Directors shall be equal to the number of then current managers of
the
board of managers of Buck Holdings, LLC as provided in Section 7.1 of the
Amended and Restated Limited Liability Company Agreement of Buck Holdings,
LLC
(“LLC Agreement”); provided, that the number of Directors shall in no event be
less than one. The Board of Directors has the power to fix or change the number
of Directors, including an increase or decrease in the number of Directors,
subject to the provisions contained in, and compliance with the provisions
of,
the LLC Agreement. The Directors shall be elected by stockholders at their
annual meeting or pursuant to a consent of the stockholders provided herein.
Subject to the provisions contained in the LLC Agreement, a Director may be
removed with or without cause by the stockholders and any vacancies and newly
created directorships resulting from any increase in the number of Directors
may
be filled by a majority vote of the Directors then in office, although less
than
a quorum, or by the sole remaining Director or by the stockholders.
Section
2.
Voting
.
Except
as otherwise provided herein, each director shall be entitled to one vote;
provided, however, (a) in the event that (i) KKR 2006 Fund L.P. and its
affiliates (“KKR”) shall have the right to designate and cause to be elected
four Directors pursuant to Section 1 of this Article II, each of the Directors
actually designated by KKR and elected to the Board of Directors shall be
entitled to a number of votes equal to four divided by the number of Directors
actually designated by KKR; (ii) KKR shall have the right to designate and
cause
to be elected three Directors pursuant to Section 1 of this Article II, each
of
the Directors actually designated by KKR and elected to the Board of Directors
shall be entitled to a number of votes equal to three divided by the number
of
Directors actually designated by KKR; (iii) KKR shall have the right to
designate and cause to be elected two Directors pursuant to Section 1 of this
Article II, each of the Directors actually designated by KKR and elected to
the
Board of Directors shall be entitled to a number of votes equal to two divided
by the number of Directors actually designated by KKR; and (iv) KKR shall have
the right to designate and cause to be elected one Director pursuant to Section
1 of this Article II, for the avoidance of doubt, such director shall have
one
vote; and (b) in the event that (i) GS Capital Partners VI Fund, L.P. and its
affiliates (“Goldman”) designate two Directors to the Board of Directors
pursuant to Section 1 of this Article II, each such Director so designated
and
elected to the Board of Directors shall have half a vote and (ii) Goldman
designates one Director pursuant to Section I of this Article II, such Director
so designated and elected to the Board of Directors shall have one vote.
Section
3.
Meetings
.
Regular
meetings of the Board of Directors shall be held at such times and places as
may
from time to time be fixed by the Board of Directors or as may be specified
in a
notice of meeting. Special meetings of the Board of Directors may be held at
any
time
upon
the call of the President and shall be called by the President and Secretary
if
directed by the Board of Directors.
Section
4.
Notice
.
Regular
meetings of the Board of Directors may be called on at least two (2) Business
Days notice to each Director, either personally, by telephone, by mail, by
telecopier, by electronic mail or by any other means of communication reasonably
calculated to give notice, at such times and at such places as shall from time
to time be determined by the Board of Directors, or the chairman thereof (if
any), as applicable. Any Directors holding two votes on the Board of Directors
(of which at least one such Director must have been designated by KKR) may
call
a special meeting of the Board of Directors on not less than two (2) Business
Days’ notice to each other Director, either personally, by telephone, by mail,
by telecopier, by electronic mail or by any other means of communication
reasonably calculated to give notice. Notice of a special meeting need not
be
given to any Director if a written waiver of notice, executed by such Director
before or after the meeting, is filed with the records of the meeting, or to
any
Director who attends the meeting without protesting the lack of notice prior
thereto or at its commencement. The notice shall state the purposes of the
meeting.
Section
5.
Quorum
.
At all
duly called meetings of the Board of Directors thereof, Directors holding a
majority of the total number of votes (including at least one designee of KKR
and taking into account the right of Directors to vote for undesignated
Directors pursuant to Section II of this Article II) on the Board of Directors
shall constitute a quorum for the transaction of business. If a quorum is not
present at any meeting of the Board of Directors, the Directors present may
adjourn the meeting from time to time, without notice other than announcement
at
the meeting, until such a quorum is present. Except as otherwise provided by
law, the Charter of the Corporation, these By-Laws or any contract or agreement
to which the Corporation is a party, the act of Directors holding a majority
of
the total number of votes on the Board of Directors (taking into account the
right of Directors to vote for undesignated Directors pursuant to Section II
of
this Article II, and which majority must include a designee of KKR) at any
meeting at which there is a quorum shall be the act of the Board of
Directors.
Section
6.
Committees
.
The
Board of Directors shall establish an Audit Committee and a Compensation
Committee and any other committee of the Board of Directors that may be formed
upon the approval of the Board of Directors, the power and authority of each
to
be determined from time to time by the Board of Directors. KKR shall be entitled
to appoint one or more Directors to each committee of the Board of Directors
and
Goldman shall be entitled to designate a Director to any committee as to which
KKR has designated a Director;
provided
,
however
,
that
each of KKR and Goldman shall lose such right at such time as it is no longer
entitled to designate Directors having at least one vote on the Board of
Directors. Additional members of each committee, if any, shall be as appointed
by the Board of Directors and the Board of Directors shall have the right to
appoint any other observer to any such committee. The chairmen of the committees
will be designated by KKR.
Section
7.
Actions
of Board Without Meeting
.
Unless
otherwise provided by the Charter or these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all the members of the
Board
of Directors or committee, as the case may be, consent thereto in writing,
and
the
writing
or writings are filed with the minutes of proceedings of the Board of Directors
or committee.
ARTICLE
III
OFFICERS
The
officers of the Corporation shall consist of a President, a Vice President,
a
Secretary and a Treasurer, and such other additional officers with such titles
as the Board of Directors shall determine, all of which shall be chosen by
and
shall serve at the pleasure of the Board of Directors. Such officers shall
have
the usual powers and shall perform all the usual duties incident to their
respective offices. All officers shall be subject to the supervision and
direction of the Board of Directors. The authority, duties or responsibilities
of any officer of the Corporation may be suspended by the President with or
without cause. Any officer elected or appointed by the Board of Directors may
be
removed by the Board of Directors with or without cause.
ARTICLE
IV
GENERAL
PROVISIONS
Section
1.
Fiscal
Year
.
The
fiscal year of the Corporation shall be fixed by the Board of
Directors.
Section
2.
Corporate
Books
.
The
books of the Corporation may be kept at such place within or outside the State
of Tennessee as the Board of Directors may from time to time determine.
ARTICLE
V
INDEMNIFICATION
Section
1.
Indemnification
and Advancement of Expenses
.
The
Corporation shall indemnify and advance expenses to each director and officer
of
the Corporation, or any person who may have served at the request of the
Corporation’s Board of Directors or its President or Chief Executive Officer as
a director or officer of another corporation (and, in either case, such person’s
heirs, executors and administrators), to the full extent allowed by the laws
of
the State of Tennessee, both as now in effect and as hereafter adopted. The
Corporation may indemnify and
advance
expenses to any employee or agent of the Corporation who is not a director
or
officer (and such person’s heirs, executors and administrators) to the same
extent as to a director or officer, if the Board of Directors determines
that
doing so is in the best interests of the Corporation.
Section
2.
Non-Exclusivity
of Rights
.
The
indemnification and expense advancement provisions of Section 1 of this Article
V shall not be exclusive of any other right which any person (and such person's
heirs, executors and administrators) may have or hereafter acquire under any
statute, provision of the Charter, provision of these Bylaws, resolution adopted
by the shareholders, resolution adopted by the Board of Directors, agreement,
or
insurance (purchased by the Corporation or otherwise), both as to action in
such
person's official capacity and as to action in another capacity.
Section
3.
Insurance
.
The
Corporation may maintain insurance, at its expense, to protect itself and any
individual who is or was a director, officer, employee or agent of the
Corporation, or who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation's Board of
Directors or its Chief Executive Officer as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against any expense, liability
or loss whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under this Article or the
Act.
EXHIBIT
4.1
EXECUTION
VERSION
TENTH
SUPPLEMENTAL INDENTURE, dated as of July 6, 2007, by and among Dollar General
Corporation, a Tennessee corporation (the “Company”), the guarantors listed on
the signature pages hereto (the “Guarantors”) and U.S. Bank National
Association, as trustee (successor to Wachovia Bank, National Association,
formerly known as First Union National Bank) (the “Trustee”), to the Indenture,
dated as of dated as of June 21, 2000, as supplemented by the First Supplemental
Indenture, dated as of July 28, 2000, the Second Supplemental Indenture,
dated
as of June 18, 2001, the Third Supplemental Indenture, dated as of June 20,
2002, the Fourth Supplemental Indenture, dated as of December 11, 2002, the
Fifth Supplemental Indenture, dated as of May 22, 2003, the Sixth Supplemental
Indenture, dated as of July 15, 2003, the Seventh Supplemental Indenture,
dated
as of May 23, 2005, the Eighth Supplemental Indenture, dated as of July 27,
2005
and the Ninth Supplemental Indenture, dated as of August 30, 2006, each among
the Company, the Guarantors named therein, and the Trustee (the
“Indenture”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
the Company, the Guarantors and the Trustee have heretofore executed and
delivered the Indenture providing for the issuance of 8
5
/
8
%
Senior
Notes due 2010 (the “Notes”) of the Company;
WHEREAS,
there is currently outstanding under the Indenture $200,000,000 in aggregate
principal amount of the Notes;
WHEREAS,
the Indenture, among other things, restricts the Company’s ability to incur
additional indebtedness, to enter into sale-leaseback transactions and to
create
certain liens;
WHEREAS,
Section 9.02 of the Indenture provides that the Company, the Guarantors and
the
Trustee may, with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (the “Requisite Consents”), enter into a
supplemental indenture for the purpose of amending the Indenture;
WHEREAS,
the Company has offered to purchase for cash all of the outstanding Notes
(the
“Tender Offer”) upon the terms and subject to the conditions set forth in the
Offer to Purchase and Consent Solicitation Statement dated June 4, 2007,
as the
same may be amended, supplemented or modified (the “Offer to Purchase”), and in
connection therewith has solicited consents from Holders of the Notes to
the
proposed amendments (the “Amendments”) to the Indenture (as described in the
Offer to Purchase);
WHEREAS,
the Tender Offer and the effectiveness of the Amendments are conditioned
upon,
among other things, obtaining of the Requisite Consents to the Amendments
by the
Consent Payment Deadline (as defined in the Offer to Purchase), the execution
of
a supplemental indenture providing for the Amendments and consummation of
the
other Transactions (as described and defined in the Offer to
Purchase);
WHEREAS,
the Company has received and delivered to the Trustee the Requisite Consents
to
effect the Amendments under the Indenture; and
WHEREAS,
the Company and the Guarantors have been authorized by a resolution of their
respective Boards of Directors to enter into this Tenth Supplemental Indenture;
NOW,
THEREFORE, in consideration of the premises and covenants and agreements
contained herein, and for other good and valuable consideration the receipt
of
which is hereby acknowledged, and for the benefit of the Holders of the Notes,
the Company, the Guarantors and the Trustee hereby agree as
follows:
ARTICLE
ONE
Definitions
Section
1.01
Definitions.
Capitalized
terms used in this Tenth Supplemental Indenture and not otherwise defined
herein
shall have the meanings assigned to such terms in the Indenture.
ARTICLE
TWO
Amendments
to the Indenture
Section
2.01
Amendments
The
following provisions of the Indenture shall be amended hereby as follows:
(a)
Section
1.01 of the Indenture shall be amended by deleting the following definitions:
“Attributable Debt,” “Capital Lease,” “Capital Lease Obligations,” “Consolidated
Net Tangible Assets,” “Funded Debt,” “Intangible Assets,” “Nonrecourse
Obligation,” “Operating Asset,” Principal Property,” “Secured Debt,” and “Shelf
Registration Statement”.
(b)
Section
1.01 of the Indenture shall be amended by deleting the phrase “
;(iv)
all
Capital Lease Obligations of such Person; (v) all Contingent Obligations
of such
Person;
”
in
the
definition of “Indebtedness.”
(c)
Section
1.01 of the Indenture shall be amended by deleting the phrases “if such
Indebtedness is not permitted to be incurred as of such date under Section
4.04
or Section 4.05” , “and such Attributable Debt is permitted under Section 4.04
and Section 4.05” , “and an incurrence of Attributable Debt” , “(ii) shall not
designate, or continue the designation, as an Unrestricted Subsidiary any
Subsidiary that owns more than 5.0% of Consolidated Net Tangible Assets,” , “as
an Unrestricted Subsidiary any Subsidiary that owns any Principal Property” and
“such Principal Property” in the definition of “Unrestricted
Subsidiary.”
(d)
Section
1.02 of the Indenture shall be amended by deleting the following phrases
and
associated section cross-references: “Sale and Leaseback Transaction.”
(e)
Section
4.03 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and replacing it with the following text:
“Section
4.02. Reports.
The
Company shall file with the Trustee copies of such information, documents,
or
reports, if any, that are required to be filed pursuant to Section 314(a)(1)
of
the TIA.”
(f)
Section
4.04 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(g)
Section
4.05 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(h)
Section
4.06 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(i)
Section
4.07 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(j)
Section
5.01 of the Indenture shall be amended by deleting the text of such Section
in
its entirety and replacing it with the following text:
“Section
5.01. When the Company May Merge, Consolidate or Dispose of Assets.
The
Company shall not consolidate or merge with or into, or transfer all or
substantially all of its assets to, another Person unless:
(i)
either
(A) the Company shall be the surviving Person, or (B) the Person formed by
or
surviving any such consolidation or merger (if other than the Company), or
to
which any such transfer shall have been made, is a corporation organized
and
existing under the laws of the United States, any State thereof or the District
of Columbia;
(ii)
the
surviving Person (if other than the Company) expressly assumes by supplemental
indenture all the obligations of the Company under the Notes and this Indenture;
and
(iii)
the
Company shall have delivered to the Trustee prior to the proposed transaction
an
Officers' Certificate and an Opinion of Counsel, each stating that the proposed
consolidation, merger or transfer and such supplemental indenture will comply
with this Indenture.
(k)
Section
6.01 shall be amended by deleting the text of clauses (iii), (vi), (vii)
and
(viii), and inserting in lieu thereof the phrase “[intentionally
omitted].”
(l)
Section
6.01 shall be amended by deleting all references to “Restricted Subsidiary” in
subsections (iv) and (v) thereof.
(m)
Section
8.01(b) shall be amended by deleting the sentence “If the Company exercises its
covenant defeasance option, payment of the Notes may not be accelerated because
of an Event of Default specified in Section 6.01(iii).”
(n)
To
the
extent not expressly deleted pursuant to the amendments set forth in Subsections
(a) through (m) of this Section 2.01, (i) all references made to a deleted
provision of the Indenture in the Indenture or the Notes hereby are deleted
in
their entirety, and (b) any definitions used exclusively in the provisions
of
the Indenture deleted pursuant to the amendments set forth in Subsections
(a)
through (m) of this Section 2.01 hereby are deleted in their entirety from
the
Indenture.
ARTICLE
THREE
Miscellaneous
Section
3.01
Effectiveness
of the Tenth Supplemental Indenture
(a)
This
Tenth Supplemental Indenture is entered into pursuant to and consistent with
Section 9.02 of the Indenture.
(b)
This
Tenth Supplemental Indenture shall become effective and binding on the Company,
the Guarantors and the Trustee and the holders of the Notes upon the execution
and delivery of this Tenth Supplemental Indenture by the parties hereto,
and the
Amendments will become operative immediately prior to the Merger (as defined
in
the Offer to Purchase) provided that all validly tendered Notes are accepted
for
payment pursuant to the Tender Offer upon consummation of the Merger (as
defined
in the Offer to Purchase).
Section
3.02
Continuing
Effect of Indenture.
Except
as
expressly provided herein, all of the terms, provisions and conditions of
the
Indenture and the Notes outstanding thereunder shall remain in full force
and
effect.
Section
3.03
Construction
of Tenth Supplemental Indenture.
This
Tenth Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and
as
part of the Indenture.
Section
3.04
Trust
Indenture Act Controls.
If
any
provision of this Tenth Supplemental Indenture limits, qualifies or conflicts
with another provision of this Tenth Supplemental Indenture or the Indenture
that is required to be included by the Trust Indenture Act of 1939, as amended,
as in force at the date this Tenth Supplemental Indenture is executed, the
provision required by said Act shall control.
Section
3.05
Trustee
Disclaimer.
The
recitals contained in this Tenth Supplemental Indenture shall be taken as
the
statements of the Company, and the Trustee assumes no responsibility for
their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Tenth Supplemental Indenture.
Section
3.06
Governing
Law
.
THIS
TENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS TENTH SUPPLEMENTAL INDENTURE OR THE
NOTES.
Section
3.07
Counterparts.
This
Tenth Supplemental Indenture may be executed in any number of counterparts,
each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental
Indenture to be duly executed as of the day and year first above
written.
DOLLAR
GENERAL
CORPORATION
By:
/s/
Wade Smith
___________________
Name:
Wade Smith
Title:
Vice President and Treasurer
U.S.
BANK NATIONAL
ASSOCIATION, as Trustee
By:
/s/
Donna L. Williams
______________
Name:
Donna L.
Williams
Title:Vice
President
Guarantors:
DG
RETAIL
LLC
By:
Dollar General
Corporation, its managing
member
By:
/s/
Wade Smith
Name:
Wade Smith
Title:
Vice President and
Treasurer
DOLGENCORP,
INC.
By:
/s/
Wade Smith
____________________
Name:
Wade
Smith
Title:
Treasurer
ASHLEY
RIVER
INSURANCE CO.
By:
/s/
Wade Smith
_____________________
Name: Wade Smith
Title: Treasurer
DOLLAR
GENERAL
INVESTMENT, INC.
By:
/s/
Wade Smith
_____________________
Name: Wade Smith
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC.
By:
/s/
Wade Smith
______________________
Name:
Wade Smith
Title: Treasurer
DG
TRANSPORTATION
INC.
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Treasurer
DOLLAR
GENERAL
MERCHANDISING, INC.
f/k/a
Lonestar
Administrative Services, Inc.
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Treasurer
DG
PROMOTIONS, INC.
f/k/a
Nations Title
Company, Inc.
By:
/s/
Wade Smith
_____________________
Name: Wade Smith
Title: Treasurer
DOLGENCORP
OF NEW
YORK, INC.
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Treasurer
DG
LOGISTICS
LLC
By:
DG Transportation
Inc., its sole member
By:
/s/
Wade Smith
______________________
Name:
Wade Smith
Title: Treasurer
DOLLAR
GENERAL
PARTNERS
By:
Dollar General
Corporation, a general partner
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Vice President and Treasurer
By:
Dollar General
Merchandising, Inc., a general
partner
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Treasurer
DGC
HOLDINGS,
LLC
By:
Dollar General
Corporation, its sole member
By:
/s/
Wade Smith
______________________
Name: Wade Smith
Title: Vice President and Treasurer
DGC
PROPERTIES
LLC
By:
Dolgencorp, Inc.,
its Managing Member
By:
/s/
Wade
Smith
Name: Wade Smith
Title: Treasurer
SOUTH
BOSTON
HOLDINGS, INC.
By:
/s/
Wade Smith
_____________________________
Name: Wade Smith
Title: Treasurer
DGC
PROPERTIES OF KENTUCKY,
LLC
By:
Dollar General
Partners, its Sole Member
By:
/s/
Wade Smith_________________________
Name: Wade Smith
Title: Treasurer
By:
Dolgencorp, Inc.,
its Managing Member
By:
/s/
Wade Smith
__________________________
Name: Wade Smith
Title:
Treasurer
DOLLAR
GENERAL GLOBAL
SOURCING LIMITED
By:
/s/
Wade Smith
_________________________
Name:
Wade
Smith
Title: Treasurer
SUN-DOLLAR,
L.P.
By:
South Boston
Holdings, Inc., its general partner
By:
/s/
Wade Smith
_________________________
Name: Wade Smith
Title: Treasurer
By:
Dolgencorp, Inc.,
its limited partner
By:
/s/
Wade Smith
Name:
Wade Smith
Title: Treasurer
10
EXHIBIT
4.2
Execution
Version
$2,300,000,000
CREDIT
AGREEMENT
Dated
as
of July 6, 2007
among
DOLLAR
GENERAL CORPORATION,
as
the
Borrower,
The
Several Lenders
from
Time
to Time Parties Hereto,
CITICORP
NORTH AMERICA, INC.,
as
Administrative Agent and Collateral Agent,
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as
Syndication Agent,
and
LEHMAN
COMMERCIAL PAPER INC.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as
Documentation Agents
GOLDMAN
SACHS CREDIT PARTNERS L.P.
CITIGROUP
GLOBAL MARKETS INC.
LEHMAN
BROTHERS INC.
and
WACHOVIA
CAPITAL MARKETS, LLC,
as
Joint
Lead Arrangers and Bookrunners
TABLE
OF
CONTENTS
|
|
|
|
Page
|
|
|
|
|
|
SECTION
1.
|
|
DEFINITIONS
|
2
|
|
1.1.
|
|
Defined
Terms
|
2
|
|
1.2.
|
|
Other
Interpretive Provisions
|
45
|
|
1.3.
|
|
Accounting
Terms
|
46
|
|
1.4.
|
|
Rounding
|
46
|
|
1.5.
|
|
References
to Agreements, Laws, Etc.
|
46
|
|
1.6.
|
|
Determination
of Status.
|
47
|
|
|
|
|
|
SECTION
2.
|
|
AMOUNT
AND TERMS OF CREDIT
|
48
|
|
2.1.
|
|
Commitments
|
48
|
|
2.2.
|
|
Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
|
49
|
|
2.3.
|
|
Notice
of Borrowing
|
49
|
|
2.4.
|
|
Disbursement
of Funds
|
49
|
|
2.5.
|
|
Repayment
of Loans; Evidence of Debt
|
50
|
|
2.6.
|
|
Conversions
and Continuations
|
51
|
|
2.7.
|
|
Pro
Rata Borrowings
|
52
|
|
2.8.
|
|
Interest
|
52
|
|
2.9.
|
|
Interest
Periods
|
53
|
|
2.10.
|
|
Increased
Costs, Illegality, Etc.
|
54
|
|
2.11.
|
|
Compensation
|
56
|
|
2.12.
|
|
Change
of Lending Office
|
56
|
|
2.13.
|
|
Notice
of Certain Costs
|
56
|
|
2.14.
|
|
Incremental
Facilities
|
56
|
|
|
|
|
|
SECTION
3.
|
|
[RESERVED].
|
58
|
|
|
|
|
|
SECTION
4.
|
|
COMMITMENT
TERMINATIONS
|
58
|
|
4.1.
|
|
Mandatory
Termination of Commitments
|
58
|
|
|
|
|
|
SECTION
5.
|
|
PAYMENTS
|
58
|
|
5.1.
|
|
Voluntary
Prepayments
|
58
|
|
5.2.
|
|
Mandatory
Prepayments
|
59
|
|
5.3.
|
|
Method
and Place of Payment
|
62
|
|
5.4.
|
|
Net
Payments
|
62
|
|
5.5.
|
|
Computations
of Interest and Fees
|
65
|
|
5.6.
|
|
Limit
on Rate of Interest
|
66
|
|
|
|
|
|
SECTION
6.
|
|
CONDITIONS
PRECEDENT TO INITIAL BORROWING
|
66
|
|
6.1.
|
|
Credit
Documents
|
66
|
|
6.2.
|
|
Collateral
|
67
|
|
6.3.
|
|
Legal
Opinions
|
67
|
|
6.4.
|
|
Contemporaneous
Debt Financings and Repayments
|
67
|
|
|
|
|
Page
|
|
|
|
|
|
|
6.5.
|
|
Equity
Investments
|
68
|
|
6.6.
|
|
Closing
Certificates
|
68
|
|
6.7.
|
|
Authorization
of Proceedings of Each Credit Party
|
68
|
|
6.8.
|
|
Fees
|
68
|
|
6.9.
|
|
Representations
and Warranties
|
68
|
|
6.10.
|
|
Related
Agreements
|
68
|
|
6.11.
|
|
Solvency
Certificate
|
68
|
|
6.12.
|
|
Merger
|
68
|
|
6.13.
|
|
Pro
Forma Balance Sheet
|
69
|
|
6.14.
|
|
Patriot
Act
|
69
|
|
|
|
|
|
SECTION
7.
|
|
CONDITIONS
PRECEDENT TO ALL CREDIT EVENTS
|
69
|
|
7.1.
|
|
No
Default; Representations and Warranties
|
69
|
|
7.2.
|
|
Notice
of Borrowing
|
69
|
|
|
|
|
|
SECTION
8.
|
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
|
69
|
|
8.1.
|
|
Corporate
Status
|
70
|
|
8.2.
|
|
Corporate
Power and Authority
|
70
|
|
8.3.
|
|
No
Violation
|
70
|
|
8.4.
|
|
Litigation
|
70
|
|
8.5.
|
|
Margin
Regulations
|
70
|
|
8.6.
|
|
Governmental
Approvals
|
70
|
|
8.7.
|
|
Investment
Company Act
|
71
|
|
8.8.
|
|
True
and Complete Disclosure
|
71
|
|
8.9.
|
|
Financial
Condition; Financial Statements
|
71
|
|
8.10.
|
|
Tax
Matters
|
72
|
|
8.11.
|
|
Compliance
with ERISA
|
72
|
|
8.12.
|
|
Subsidiaries
|
73
|
|
8.13.
|
|
Intellectual
Property
|
73
|
|
8.14.
|
|
Environmental
Laws
|
73
|
|
8.15.
|
|
Properties
|
73
|
|
8.16.
|
|
Solvency
|
74
|
|
|
|
|
|
SECTION
9.
|
|
AFFIRMATIVE
COVENANTS
|
74
|
|
9.1.
|
|
Information
Covenants
|
74
|
|
9.2.
|
|
Books,
Records and Inspections
|
77
|
|
9.3.
|
|
Maintenance
of Insurance
|
78
|
|
9.4.
|
|
Payment
of Taxes
|
78
|
|
9.5.
|
|
Consolidated
Corporate Franchises
|
78
|
|
9.6.
|
|
Compliance
with Statutes, Regulations, Etc.
|
78
|
|
9.7.
|
|
ERISA
|
79
|
|
9.8.
|
|
Maintenance
of Properties
|
79
|
|
9.9.
|
|
Transactions
with Affiliates
|
80
|
|
9.10.
|
|
End
of Fiscal Years; Fiscal Quarters
|
80
|
|
9.11.
|
|
Additional
Guarantors and Grantors
|
81
|
|
9.12.
|
|
Pledge
of Additional Stock and Evidence of Indebtedness
|
81
|
|
|
|
|
Page
|
|
|
|
|
|
|
9.13.
|
|
Use
of Proceeds
|
81
|
|
9.14.
|
|
Further
Assurances
|
82
|
|
|
|
|
|
SECTION
10.
|
|
NEGATIVE
COVENANTS
|
83
|
|
10.1.
|
|
Limitation
on Indebtedness
|
83
|
|
10.2.
|
|
Limitation
on Liens
|
89
|
|
10.3.
|
|
Limitation
on Fundamental Changes
|
92
|
|
10.4.
|
|
Limitation
on Sale of Assets
|
94
|
|
10.5.
|
|
Limitation
on Investments
|
96
|
|
10.6.
|
|
Limitation
on Dividends
|
99
|
|
10.7.
|
|
Limitations
on Debt Payments and Amendments
|
102
|
|
10.8.
|
|
Changes
in Business
|
103
|
|
|
|
|
|
SECTION
11.
|
|
EVENTS
OF DEFAULT
|
103
|
|
11.1.
|
|
Payments
|
103
|
|
11.2.
|
|
Representations,
Etc.
|
103
|
|
11.3.
|
|
Covenants
|
103
|
|
11.4.
|
|
Default
Under Other Agreements
|
103
|
|
11.5.
|
|
Bankruptcy,
Etc.
|
104
|
|
11.6.
|
|
ERISA
|
104
|
|
11.7.
|
|
Guarantee
|
105
|
|
11.8.
|
|
Pledge
Agreement
|
105
|
|
11.9.
|
|
Security
Agreement
|
105
|
|
11.10.
|
|
Mortgages
|
105
|
|
11.11.
|
|
Judgments
|
105
|
|
11.12.
|
|
Change
of Control
|
105
|
|
11.13.
|
|
Subordination
|
105
|
|
11.14.
|
|
Application
of Proceeds
|
106
|
|
11.15.
|
|
Acknowledgement
by Lenders
|
107
|
|
|
|
|
|
SECTION
12.
|
|
THE
AGENTS.
|
107
|
|
12.1.
|
|
Appointment
|
107
|
|
12.2.
|
|
Delegation
of Duties
|
108
|
|
12.3.
|
|
Exculpatory
Provisions
|
108
|
|
12.4.
|
|
Reliance
by Agents
|
108
|
|
12.5.
|
|
Notice
of Default
|
109
|
|
12.6.
|
|
Non-Reliance
on Administrative Agent, Collateral Agent and Other
Lenders
|
109
|
|
12.7.
|
|
Indemnification
|
110
|
|
12.8.
|
|
Agents
in its Individual Capacities
|
111
|
|
12.9.
|
|
Successor
Agents
|
111
|
|
12.10.
|
|
Withholding
Tax
|
112
|
|
12.11.
|
|
Intercreditor
Agreement
|
112
|
|
12.12.
|
|
Agents
under Security Documents and Guarantee
|
112
|
|
12.13.
|
|
Right
to Realize on Collateral and Enforce Guarantee.
|
113
|
|
|
|
|
Page
|
|
|
|
|
|
SECTION
13.
|
|
MISCELLANEOUS
|
113
|
|
13.1.
|
|
Amendments,
Waivers and Releases
|
113
|
|
13.2.
|
|
Notices
|
116
|
|
13.3.
|
|
No
Waiver; Cumulative Remedies
|
116
|
|
13.4.
|
|
Survival
of Representations and Warranties
|
117
|
|
13.5.
|
|
Payment
of Expenses; Indemnification
|
117
|
|
13.6.
|
|
Successors
and Assigns; Participations and Assignments
|
118
|
|
13.7.
|
|
Replacements
of Lenders under Certain Circumstances
|
122
|
|
13.8.
|
|
Adjustments;
Set-off
|
123
|
|
13.9.
|
|
Counterparts
|
123
|
|
13.10.
|
|
Severability
|
123
|
|
13.11.
|
|
Integration
|
123
|
|
13.12.
|
|
GOVERNING
LAW
|
124
|
|
13.13.
|
|
Submission
to Jurisdiction; Waivers
|
124
|
|
13.14.
|
|
Acknowledgments
|
124
|
|
13.15.
|
|
WAIVERS
OF JURY TRIAL
|
125
|
|
13.16.
|
|
Confidentiality
|
126
|
|
13.17.
|
|
Direct
Website Communications
|
126
|
|
13.18.
|
|
USA
PATRIOT Act
|
128
|
|
13.19.
|
|
Judgment
Currency
|
128
|
|
13.20.
|
|
Payments
Set Aside
|
128
|
SCHEDULES
|
|
|
Schedule
1.1(b)
|
|
Mortgaged
Properties
|
Schedule 1.1(c)
|
|
Commitments
and Addresses of Lenders
|
Schedule
1.1(d)
|
|
Excluded
Subsidiaries
|
Schedule
6.3
|
|
Local
Counsels
|
Schedule
8.3
|
|
No
Violations
|
Schedule
8.4
|
|
Litigation
|
Schedule 8.12
|
|
Subsidiaries
|
Schedule
8.15(a)
|
|
Representations
and Warranties
|
Schedule
9.9
|
|
Closing
Date Affiliate Transactions
|
Schedule
9.14(d)
|
|
Post-Closing
Actions
|
Schedule 10.1
|
|
Closing
Date Indebtedness
|
Schedule 10.2
|
|
Closing
Date Liens
|
Schedule 10.4
|
|
Scheduled
Dispositions
|
Schedule 10.5
|
|
Closing
Date Investments
|
Schedule
13.2
|
|
Notice
Addresses
|
EXHIBITS
|
|
|
|
|
|
Exhibit
A
|
|
Reserved
|
Exhibit B
|
|
Form
of Guarantee
|
Exhibit C
|
|
Form
of Mortgage (Real Property)
|
Exhibit D
|
|
Form
of Perfection Certificate
|
Exhibit E
|
|
Form
of Pledge Agreement
|
Exhibit F
|
|
Form
of Security Agreement
|
Exhibit G
|
|
Reserved
|
Exhibit H-1
|
|
Form
of Legal Opinion of Simpson Thacher & Bartlett
LLP
|
Exhibit H-2
|
|
Form
of Legal Opinion of General Counsel
|
Exhibit I
|
|
Form
of Credit Party Closing Certificate
|
Exhibit J
|
|
Form
of Assignment and Acceptance
|
Exhibit K
|
|
Form
of Promissory Note
|
Exhibit L
|
|
Form
of Joinder Agreement
|
CREDIT
AGREEMENT, dated as of July 6, 2007, among DOLLAR GENERAL CORPORATION, a
Tennessee corporation (the “
Borrower
”), the lending
institutions from time to time parties hereto (each a “
Lender
”
and, collectively, the “
Lenders
”), CITICORP NORTH AMERICA,
INC., as Administrative Agent and Collateral Agent (such term and each other
capitalized term used but not defined in this preamble having the meaning
provided in
Section 1
), GOLDMAN SACHS CREDIT PARTNERS L.P., as
Syndication Agent, GOLDMAN SACHS CREDIT PARTNERS L.P., CITIGROUP GLOBAL MARKETS
INC., LEHMAN BROTHERS INC. and WACHOVIA CAPITAL MARKETS, LLC, as Joint Lead
Arrangers and Bookrunners, and LEHMAN COMMERCIAL PAPER INC. and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Documentation Agents (each, in such capacity, a
“
Documentation Agent
”).
WHEREAS,
pursuant to the Agreement and Plan of Merger (as amended from time to time
in
accordance therewith, the “
Acquisition Agreement
”), dated as of
March 11, 2007, by and among the Borrower, Holdings and Merger Sub, Merger
Sub
will merge with and into the Borrower (the “
Merger
”), with the
Borrower surviving the Merger as a wholly-owned Subsidiary of
Holdings;
WHEREAS,
to fund, in part, the Merger, it is intended that the Sponsors and certain
other
investors (including the Management Investors) will contribute an amount in
cash
to Holdings and/or a direct or indirect parent thereof in exchange for Stock
and
Stock Equivalents (which cash will be contributed to the Borrower in exchange
for common Stock of the Borrower), which together with the amount of any
rollover equity issued to existing shareholders of the Borrower (such
contribution and rollover, collectively, the “
Equity
Investments
”), shall be no less than 25% of the aggregate pro forma
capitalization of the Borrower on the Closing Date (the “
Minimum Equity
Amount
”);
WHEREAS,
to consummate the transactions contemplated by the Acquisition Agreement, it
is
intended that the Borrower will (a) issue under the Senior Notes Indenture
$1,175,000,000 aggregate principal amount of 10.625% senior notes due 2015
(the
“
Senior Notes
”) in sales pursuant to Rule 144A and
Regulation S under the Securities Act of 1933, as amended (the “
Senior
Notes Offering
”), generating aggregate gross proceeds of up to
$1,175,000,000, (b) issue under the Senior Subordinated Notes Indenture
$725,000,000 aggregate principal amount of 11.875%/12.625%% senior subordinated
notes due 2017 (the
“Senior Subordinated Notes
,” and together
with the Senior Notes, the “
Notes
”) in a sale pursuant to
Rule 144A and Regulation S under the Securities Act of 1933, as amended
(the “
Senior Subordinated
Notes Offering
” and
together with the Senior Notes Offering, the
“Notes Offerings”
)
and (c) enter into the ABL Facility to provide for an aggregate principal
amount of up to $1,125,000,000 of revolving borrowings, of which up to
$432,300,000 may be borrowed on the Closing Date to finance a portion of the
Transactions;
WHEREAS,
in connection with the foregoing, the Borrower has requested that the Lenders
extend credit in the form of Term Loans on the Closing Date in an aggregate
principal amount of $2,300,000,000;
WHEREAS,
the proceeds of the Term Loans will be used by the Borrower, together with
(a) the net proceeds of the Notes Offerings, (b) up to $432,300,000 of
borrowing
under
the
ABL Facility and (c) the net proceeds of the Equity Investments to effect
the Merger and to pay Transaction Expenses; and
WHEREAS,
the Lenders are willing to make available to the Borrower such term loans upon
the terms and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto hereby agree as follows:
SECTION
1.
Definitions
1.1.
Defined
Terms
(a) As
used herein, the following terms shall have the meanings specified in this
Section 1.1
unless the context otherwise requires (it being
understood that defined terms in this Agreement shall include in the singular
number the plural and in the plural the singular):
“
ABL
Collateral
” shall have the meaning set forth in the Intercreditor
Agreement.
“
ABL
Collateral Agent
” shall mean the collateral agent under the ABL
Facility.
“
ABL
Documents
” shall mean the ABL Facility Agreement, each other document
evidencing the ABL Facility, any guarantees issued thereunder and any collateral
and security documents (and the Intercreditor Agreement) entered into in
connection therewith.
“
ABL
Facility
” shall mean the asset-based revolving credit facility
evidenced by the ABL Facility Agreement.
“
ABL
Facility Agreement
” shall mean that certain Asset-Based Revolving
Credit Agreement entered into as of the Closing Date by and among the Borrower,
the subsidiary borrowers party thereto, the lenders party thereto in their
capacities as lenders thereunder, and The CIT Group/Business Credit, Inc.,
as
administrative agent and collateral agent thereunder, as amended, supplemented,
modified, extended, renewed or refinanced in accordance with the terms hereof
and the Intercreditor Agreement.
“
ABR
”
shall mean for any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Effective Rate
plus
1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to
time
by the Administrative Agent as its “prime rate.” The “prime rate” is
a rate set by the Administrative Agent based upon various factors including
the
Administrative Agent’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in
the ABR due to a change in such rate announced by the Administrative Agent
or in
the Federal Funds Effective Rate shall take effect at the opening of business
on
the day specified in the public announcement of such change.
“
ABR
Loan
” shall mean each Loan bearing interest based on the
ABR.
“
Acquired
EBITDA
” shall mean, with respect to any Acquired Entity or Business or
any Converted Restricted Subsidiary (any of the foregoing, a “
Pro Forma
Entity
”) for any period, the amount for such period of Consolidated
EBITDA of such Pro Forma Entity (determined using such definitions as if
references to the Borrower and its Restricted Subsidiaries therein were to
such
Pro Forma Entity and its Restricted Subsidiaries), all as determined on a
consolidated basis for such Pro Forma Entity in a manner not inconsistent with
GAAP.
“
Acquired
Entity or Business
” shall have the meaning provided in the definition
of the term “Consolidated EBITDA.”
“
Acquisition
Agreement
” shall have the meaning provided in the preamble to this
Agreement.
“
Adjusted
Total Term Loan Commitment
” shall mean at any time the Total Term Loan
Commitment less the Term Loan Commitments of all Defaulting
Lenders.
“
Adjusted
Total Tranche B-1 Term Loan Commitment
” shall mean at any time the
Total Tranche B-1 Term Loan Commitment less the Tranche B-1 Term Loan
Commitments of all Defaulting Lenders.
“
Adjusted
Total Tranche B-2 Term Loan Commitment
” shall mean at any time the
Total Tranche B-2 Term Loan Commitment less the Tranche B-2 Term Loan
Commitments of all Defaulting Lenders.
“
Administrative
Agent
” shall mean Citicorp North America, Inc., as the administrative
agent for the Lenders under this Agreement and the other Credit Documents,
or
any successor administrative agent pursuant to
Section 12
.
“
Administrative
Agent’s Office
” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on
Schedule 13.2
, or such other address
or account as the Administrative Agent may from time to time notify to the
Borrower and the Lenders.
“
Administrative
Questionnaire
” shall have the meaning provided in
Section
13.6(b)
.
“
Affiliate
”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such
Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise. “Controlling”
(“controlling”) and “controlled” shall have meanings correlative
thereto.
“
Agent
Parties
” shall have the meaning provided in
Section 13.17(c)
.
“
Agents
”
shall mean the Administrative Agent, the Collateral Agent, the Syndication
Agent, each Joint Lead Arranger and Bookrunner and the Documentation
Agents.
“
Agreement
”
shall mean this Credit Agreement, as the same may be amended, supplemented
or
otherwise modified from time to time.
“
Applicable
Amount
” shall mean, at any time (the “
Applicable Amount
Reference Time
”), an amount equal to (a) the sum, without duplication,
of:
(i)
an
amount (which shall not be less
than zero) equal to the greater of (x) 50% of Cumulative Consolidated Net Income
of the Borrower and the Restricted Subsidiaries for the period from the first
day of the first fiscal quarter commencing after the Closing Date until the
last
day of the then most recent fiscal quarter or fiscal year, as applicable, for
which Section 9.1 Financials have been delivered and (y) (A) the cumulative
amount of Excess Cash Flow of the Borrower and the Restricted Subsidiaries
for
all fiscal years (or, in the case of the fiscal year ending on or about January
31, 2008, the portion of the fiscal year) completed after the Closing Date
(commencing with and including the portion of the fiscal year ending on or
about
January 31, 2008 following the Closing Date) and prior to the Applicable Amount
Reference Time,
minus
(B) the portion of such Excess Cash Flow that has
been (or is required to be) applied after the Closing Date and prior to the
Applicable Amount Reference Time to the prepayment of Loans in accordance with
Section 5.2(a)(ii)
;
(ii)
[Reserved];
(iii)
Reserved];
(iv) to
the extent not (A) already included in the calculation of Consolidated Net
Income of the Borrower and the Restricted Subsidiaries or (B) already reflected
as a return of capital or deemed reduction in the amount of such Investment,
the
aggregate JV Distribution Amount received by the Borrower or any Restricted
Subsidiary during the period from and including the Business Day immediately
following the Closing Date through and including the Applicable Amount Reference
Time;
(v)
to
the extent not (A) already
included in the calculation of Consolidated Net Income of the Borrower and
the
Restricted Subsidiaries, (B) already reflected as a return of capital or deemed
reduction in the amount of such Investment and (C) required to be applied to
prepay Term Loans in accordance with
Section 5.2(a)
, the aggregate amount
of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary
in connection with the sale, transfer or other disposition of its ownership
interest in any joint venture that is not a Subsidiary or in any Unrestricted
Subsidiary during the period from and including the Business Day immediately
following the Closing Date through and including the Applicable Amount Reference
Time; and
(vi) other
than for purposes of
Section 10.6(c)
, the aggregate amount of Retained
Declined Proceeds retained by the Borrower during the period from and including
the Business Day immediately following the Closing Date through and including
the Applicable Amount Reference Time;
minus
(b) the sum, without duplication, of:
(i)
the aggregate amount of Investments made pursuant to
Section
10.5(g)(ii)(y),
10.5(i)(y)
or
10.5(v)(z)
following the Closing
Date and prior to the Applicable Amount Reference Time (with regard to
Investments made pursuant to
Section 10.5(g)(ii)(y),
net of any return of
capital in respect of such Investment or deemed reduction in the amount of
such
Investment including, without limitation, upon the re-designation of any
Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any
such Investment);
(ii)
the
aggregate amount of dividends
pursuant to
Section 10.6(c)(z)
following the Closing Date and prior to
the Applicable Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases and redemptions of Senior Notes
and
Senior Subordinated Notes pursuant to
Section 10.7(a)(i)(3)
following the
Closing Date and prior to the Applicable Amount Reference Time.
“
Applicable
Equity Amount
” shall mean, at any time (the “
Applicable
Equity Amount
Reference Time
”), an amount equal
to, without duplication, (a) the amount of any capital contributions (other
than
(i) the Equity Investments and (ii) any Specified Equity Contribution (as
defined in the ABL Facility Agreement)) made in cash to, or any proceeds of
an
equity issuance received by, the Borrower from and including the Business Day
immediately following the Closing Date through and including the Applicable
Equity Amount Reference Time, including proceeds from the issuance of Stock
or
Stock Equivalents of any direct or indirect parent of the Borrower, but
excluding all proceeds from the issuance of Disqualified Stock
minus
(b) the sum, without duplication, of:
(i)
the
aggregate amount of Investments
made pursuant to
Section 10.5(g)(ii)(x)
,
10.5(i)(x)
or
10.5(v)(y)
following the Closing Date and prior to the Applicable
Equity
Amount Reference Time (with regard to Investments made pursuant to
Section
10.5(g)(ii)(x),
net of any return of capital in respect of such Investment
or deemed reduction in the amount of such Investment including, without
limitation, upon the re-designation of any Unrestricted Subsidiary as a
Restricted Subsidiary or the Disposition of any such Investment);
(ii)
the
aggregate amount of dividends
pursuant to
Section 10.6(c)(y)
following the Closing Date and prior to
the Applicable Equity Amount Reference Time; and
(iii) the
aggregate amount of prepayments, repurchases and redemptions of Senior Notes
and
Senior Subordinated Notes pursuant to
Section 10.7(a)(i)(2)
following the
Closing Date and prior to the Applicable Equity Amount Reference
Time.
“
Applicable
Margin
”
shall mean, at any date, with respect to each Tranche B Term Loan
that is (a) a
LIBOR Rate Loan, 2.75%
per annum
, and (b) an ABR Loan, 1.75%
per annum
.
“
Approved
Fund
” shall
mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers
or
manages a Lender.
“
ARIC
”
shall mean Ashley River Insurance Company, Inc., a South Carolina corporation,
or any Subsidiary of the Borrower succeeding ARIC after the Closing Date as
the
so-called “captive” insurance company subject to regulation by a Governmental
Authority and providing insurance coverage and related services to the Borrower
and its other Subsidiaries.
“
Asset
Sale Prepayment Event
” shall mean any Disposition of any business
units, assets or other property of the Credit Parties or any of their Restricted
Subsidiaries not in the ordinary course of business (including any Disposition
of any Stock or Stock Equivalents of any Subsidiary of the Borrower owned by
the
Borrower or a Restricted Subsidiary). Notwithstanding the foregoing,
the term “Asset Sale Prepayment Event” shall not include any transaction
permitted by
Section 10.4
(other than transactions permitted by
Section 10.4(b)
or
Section 10.4(n)
, which shall constitute
Asset Sale Prepayment Events).
“
Assignment
and Acceptance
” shall mean an assignment and acceptance substantially
in the form of
Exhibit J
, or such other form as may be approved by
the Administrative Agent.
“
Authorized
Officer
” shall mean the President, the Chief Financial Officer, the
Treasurer or any other senior officer of the Borrower designated as such in
writing to the Administrative Agent by the applicable Borrower.
“
Bankruptcy
Code
” shall have the meaning provided in
Section
11.5
.
“
Board
”
shall mean the Board of Governors of the Federal Reserve System of the United
States (or any successor).
“
Borrower
”
shall have the meaning provided in the preamble to this Agreement.
“
Borrowing
”
shall mean and include the incurrence of one Type of Term Loan on the
Closing Date (or resulting from conversions on a given date after the Closing
Date) having, in the case of LIBOR Loans, the same Interest Period.
“
Business
Day
” shall mean any day excluding Saturday, Sunday and any other day on
which banking institutions in New York City are authorized by law or other
governmental actions to close, and, if such day relates to (a) any interest
rate
settings as to a LIBOR Loan, (b) any fundings, disbursements, settlements and
payments in respect of any such LIBOR Loan, or (c) any other dealings pursuant
to this Agreement in respect of any such LIBOR Loan, such day shall be a day
on
which dealings in deposits in Dollars are conducted by and between banks in
the
London interbank eurodollar market.
“
Capital
Expenditures
” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
in
all events all amounts expended or capitalized under Capital Leases) by the
Borrower and the Restricted Subsidiaries during such period that, in conformity
with GAAP, are or are required to be
included
as capital expenditures on a consolidated statement of cash flows of the
Borrower and its Subsidiaries.
“
Capital
Lease
” shall mean, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is, or is required to be, accounted for as a capital lease on the
balance sheet of that Person.
“
Capitalized
Lease Obligations
” shall mean, as applied to any Person, all
obligations under Capital Leases of such Person or any of its Subsidiaries,
in
each case taken at the amount thereof accounted for as liabilities in accordance
with GAAP.
“
Casualty
Event
” shall mean, with respect to any property of any Person, any loss
of or damage to, or any condemnation or other taking by a Governmental Authority
of, such property for which such Person or any of its Restricted Subsidiaries
receives insurance proceeds, or proceeds of a condemnation award or other
compensation.
“
Change
in Law
” shall mean (a) the adoption of any law, treaty, order,
policy, rule or regulation after the date of this Agreement, (b) any change
in any law, treaty, order, policy, rule or regulation or in the interpretation
or application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender with any guideline, request, directive
or order issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
of
law).
“
Change
of Control
” shall mean and be deemed to have occurred if (a) at any
time prior to a Qualifying IPO, the Permitted Holders shall at any time not
own,
in the aggregate, directly or indirectly, beneficially and of record, at least
35% of the voting power of the outstanding Voting Stock of the Borrower; or
(b) at any time after a Qualifying IPO, any person, entity or “group”
(within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act
of
1934, as amended), other than the Permitted Holders, shall at any time have
acquired direct or indirect beneficial ownership of a percentage of the voting
power of the outstanding Voting Stock of the Borrower that exceeds 35% thereof,
unless, in the case of either
clause (a)
or
(b)
above, the
Permitted Holders have, at such time, the right or the ability by voting power,
contract or otherwise to elect or designate for election at least a majority
of
the board of directors of the Borrower; or (c) Continuing Directors shall not
constitute at least a majority of the board of directors of the Borrower; or
(d) at any time, a Change of Control (as defined in the Senior Notes
Indenture or the Senior Subordinated Notes Indenture) shall have
occurred.
“
Class
”,
when used in reference to any Loan or Borrowing, shall refer to whether such
Loan, or the Loans comprising such Borrowing, are Tranche B Term Loans, Tranche
B-1 Term Loans, Tranche B-2 Term Loans or New Term Loans (of a particular
Series) and, when used in reference to any Commitment, refers to whether such
Commitment is a Tranche B Term Loan Commitment or a New Term Loan
Commitment.
“
Closing
Date
” shall mean the date of the initial Borrowing
hereunder.
“
Code
”
shall mean the Internal Revenue Code of 1986, as amended from time to time,
and
the regulations promulgated and rulings issued thereunder. Section
references to the
Code
are
to the Code, as in effect at the date of this Agreement, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.
“
Collateral
”
shall mean all property pledged or purported to be pledged pursuant to the
Security Documents.
“
Collateral
Agent
” shall mean Citicorp North America, Inc., as collateral agent
under the Security Documents, or any successor collateral agent pursuant to
Section 12
.
“
Commitments
”
shall mean, with respect to each Lender (to the extent applicable), such
Lender’s Tranche B Term Loan Commitment and New Term Loan
Commitment.
“
Communications
”
shall have the meaning provided in
Section 13.17(a)
.
“
Confidential
Information
” shall have the meaning provided in
Section
13.16
.
“
Confidential
Information Memorandum
” shall mean the Confidential Information
Memorandum of the Borrower dated June 2007.
“
Consolidated
EBITDA
” shall mean, for any period, Consolidated Net Income for such
period,
plus
:
(a) without
duplication and to the extent already deducted (and not added back) in arriving
at such Consolidated Net Income, the sum of the following amounts for the
Borrower and the Restricted Subsidiaries for such period:
(i)
total
interest expense and to the
extent not reflected in such total interest expense, any losses on hedging
obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk, net of interest income and gains on such hedging
obligations, bank fees and costs of surety bonds in connection with financing
activities,
(ii)
provision
for taxes based on income,
profits or capital, including federal, foreign, state, franchise, excise and
similar taxes and foreign withholding taxes paid or accrued during such period,
including any penalties and interest relating to any tax
examinations,
(iii) depreciation
and amortization, including the amortization of deferred financing fees or
costs,
(iv)
Non-Cash Charges other than pursuant to clauses (b) and (d) of the definition
thereof,
(v)
restructuring
charges, business
optimization expenses or reserves (including restructuring costs related to
acquisitions after the date hereof and to closure and/or consolidation of
facilities, costs and expenses relating to business
optimization
programs and new systems design and implementation costs and project start-up
costs),
(vi)
the
amount of any minority interest
expense consisting of Subsidiary income attributable to minority equity
interests of third parties in any non-wholly-owned Subsidiary deducted (and
not
added back) in such period in arriving at Consolidated Net Income,
(vii)
(A) an amount equal to the impact on cost of goods sold and operating profit
of
incremental mark-downs taken as a result of Project Alpha and (B) any expenses
associated with Project Alpha inventory and real estate initiatives (including
lease contract termination and other store closing costs, advertising, inventory
liquidation fees, incremental store labor and other costs),
provided
that
this clause (vii) shall not apply to any quarterly period beginning after
February 1, 2008,
(viii)
the amount of management, monitoring, consulting and advisory fees (including
termination fees) and related indemnities and expenses paid in such period
to
the Sponsors,
(ix)
any
costs or expenses incurred pursuant
to any management equity plan or stock option plan or any other management
or
employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such costs or expenses are funded with cash
proceeds contributed to the capital of the Borrower or net cash proceeds of
an
issuance of Stock or Stock Equivalents of the Borrower (other than Disqualified
Stock),
(x)
the
amount of net cost savings
projected by the Borrower in good faith to be realized as a result of specified
actions taken or to be taken prior to or during such period (which cost savings
shall be subject only to certification by management of the Borrower and shall
be calculated on a Pro Forma Basis as though such cost savings had been realized
on the first day of such period), net of the amount of actual benefits realized
during such period from such actions;
provided
, that (A) such cost
savings are reasonably identifiable and factually supportable, (B) such actions
have been taken or are to be taken within 12 months after the date of
determination to take such action and some portion of the benefit is expected
to
be realized within 12 months of taking such action, (C) no cost savings shall
be
added pursuant to this clause (x) to the extent duplicative of any expenses
or
charges relating to such cost savings that are included in clause (v) above
with
respect to such period and (D) the aggregate amount of cost savings added
pursuant to this clause (x) shall not exceed $25,000,000 for any four
consecutive quarter period,
(xi)
to
the extent covered by insurance and
actually reimbursed, or, so long as the Borrower has made a determination that
there exists reasonable evidence that such amount will in fact be reimbursed
by
the insurer and only to the extent that such amount is (A) not denied by the
applicable carrier in writing
within
180 days and (B) in fact reimbursed within 365 days of the date of such evidence
(with a deduction for any amount so added back to the extent not so reimbursed
within such 365 days), expenses with respect to liability or casualty events
or
business interruption,
(xii)
the
amount of losses on Dispositions of
receivables and related assets in connection with any Permitted Receivables
Financing, and
(xiii)
Cash receipts (or any netting arrangements resulting in reduced cash
expenditures) not representing Consolidated EBITDA or Consolidated Net Income
in
any period to the extent non-cash gains relating to such income were deducted
in
the calculation of Consolidated EBITDA pursuant to paragraph (b) below for
any
previous period and not added back,
less
(b) without
duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
(i)
non-cash
gains (excluding any non-cash
gain to the extent it represents the reversal of an accrual or reserve for
a
potential cash item that reduced Consolidated Net Income or Consolidated EBITDA
in any prior period),
(ii)
gains
on asset sales (other than asset
sales in the ordinary course of business),
(iii)
any net after-tax income from the early extinguishment of Indebtedness or
hedging obligations or other derivative instruments, and
(iv)
cash expenditures (or any netting arrangements resulting in increased cash
expenditures) not deducted in arriving at Consolidated EBITDA or Consolidated
Net Income in any period to the extent non-cash losses relating to such income
were added in the calculation of Consolidated EBITDA pursuant to paragraph
(a)
above for any previous period and not deducted,
in
each
case, as determined on a consolidated basis for the Borrower and the Restricted
Subsidiaries in accordance with GAAP;
provided
that
(i)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA currency translation gains and losses related to currency remeasurements
of Indebtedness or intercompany balances (including the net loss or gain
resulting from Hedge Agreements for currency exchange risk),
(ii)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA for any period any adjustments resulting from the application of
Statement of Financial Accounting Standards No. 133,
(iii)
there
shall be included in
determining Consolidated EBITDA for any period, without duplication, (A) the
Acquired EBITDA of any Person or business, or attributable to any property
or
asset, acquired by the Borrower or any Restricted Subsidiary during such period
(but not the Acquired EBITDA of any related Person or business or any Acquired
EBITDA attributable to any assets or property, in each case to the extent not
so
acquired) to the extent not subsequently sold, transferred, abandoned or
otherwise disposed by the Borrower or such Restricted Subsidiary (each such
Person, business, property or asset acquired and not subsequently so disposed
of, an “
Acquired Entity or Business
”) and the Acquired EBITDA
of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary
during such period (each, a “
Converted Restricted Subsidiary
”),
based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (B) an adjustment in
respect of each Acquired Entity or Business equal to the amount of the Pro
Forma
Adjustment with respect to such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition) as specified
in a Pro Forma Adjustment Certificate and delivered to the Lenders and the
Administrative Agent, and
(iv)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA for any period the Disposed EBITDA of any Person, property, business
or
asset (other than an Unrestricted Subsidiary) sold, transferred, abandoned
or
otherwise disposed of, closed or classified as discontinued operations by the
Borrower or any Restricted Subsidiary during such period (each such Person,
property, business or asset so sold or disposed of, a “
Sold Entity or
Business
”), and the Disposed EBITDA of any Restricted Subsidiary that
is converted into an Unrestricted Subsidiary during such period (each, a
“
Converted Unrestricted Subsidiary
”) based on the actual
Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted
Subsidiary for such period (including the portion thereof occurring prior to
such sale, transfer or disposition or conversion).
Notwithstanding
anything to the contrary contained herein and subject to adjustment as provided
in
clauses (iii)
and
(iv)
of the immediately preceding proviso
with respect to acquisitions and dispositions occurring following the Closing
Date, Consolidated EBITDA shall be deemed to be $136,100,000, $127,000,000,
$252,500,000 and $142,900,000, respectively, for the fiscal quarters ended
August 4, 2006, November 3, 2006, February 2, 2007 and May 4, 2007.
“
Consolidated
EBITDA to Consolidated Interest Expense Ratio
” shall mean, as of any
date of determination, the ratio of (a) Consolidated EBITDA for the
relevant Test Period to (b) Consolidated Interest Expense for such Test
Period;
provided
that, for purposes of calculating the Consolidated
EBITDA to Consolidated Interest Expense Ratio for the initial three successive
fiscal quarters after the Closing Date (a) Consolidated Interest Expense shall
be calculated by (i) dividing (x) the aggregate Consolidated Interest Expense
incurred for all fiscal quarters commencing with the fiscal quarter ending
on or
about October 31, 2007 by (y) the number of fiscal quarters to have ended after
the Closing Date, and multiplying the quotient thereof by 4.
“
Consolidated
Interest Expense
” shall mean, with respect to any period, without
duplication, the sum of:
(1) consolidated
interest expense of the Borrower and its Restricted Subsidiaries for such
period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income (including (a) amortization of original
issue discount resulting from the issuance of Indebtedness at less than par,
(b) all commissions, discounts and other fees and charges owed with respect
to letters of credit or bankers’ acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of obligations in respect of Hedge
Agreements or other derivative instruments pursuant to GAAP), (d) the
interest component of Capitalized Lease Obligations, and (e) net payments,
if any, pursuant to obligations under interest rate Hedge Agreements with
respect to Indebtedness, and excluding (u) accretion or accrual of
discounted liabilities not constituting Indebtedness, (v) any expense
resulting from the discounting of any Indebtedness in connection with the
application of recapitalization accounting or, if applicable, purchase
accounting, (w) all additional interest then owing pursuant to the
Registration Rights Agreement and any comparable “additional interest” with
respect to other securities, (x) amortization of deferred financing fees,
debt issuance costs, commissions, fees and expenses, (y) any expensing of
bridge, commitment and other financing fees and (z) commissions, discounts,
yield and other fees and charges (including any interest expense) related to
any
Permitted Receivables Facility); plus
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less
(3) interest
income for such period; plus
(4) all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period;
plus
(5) all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such
period.
For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be
deemed to accrue at an interest rate reasonably determined by such Person to
be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
“
Consolidated
Net Income
” shall mean, for any period, the net income (loss) of the
Borrower and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, excluding, without
duplication,
(a) any
after-tax effect of extraordinary, unusual or non-recurring charges and gains
for such period (less all fees and expenses relating thereto), including any
unusual or non-recurring operating expenses directly attributable to the
implementation of cost-savings initiatives, severance costs, relocation costs,
integration and facilities opening costs, signing costs, retention or completion
bonuses, transition costs and costs from
curtailments
or modifications to pension and post-retirement employee benefit plans for
such
period,
(b) the
cumulative effect of a change in accounting principles during such period to
the
extent included in Consolidated Net Income,
(c) Transaction
Expenses, to the extent incurred on or prior to May 1, 2008,
(d) any
fees and expenses incurred during such period, or any amortization thereof
for
such period, in connection with any acquisition, investment, recapitalization,
asset disposition, issuance or repayment of debt, issuance of equity securities,
refinancing transaction or amendment or other modification of any debt
instrument (in each case, including any such transaction consummated prior
to
the Closing Date and any such transaction undertaken but not completed) and
any
charges or non-recurring merger costs incurred during such period as a result
of
any such transaction,
(e) any
net after-tax effect of income or loss for such period attributable to the
early
extinguishment of Indebtedness or to hedging obligations or other derivative
instruments,
(f) accruals
and reserves established or adjusted
within twelve months
after the Closing Date that are so required to be established as a result of
the
Transactions in accordance with GAAP or changes as a result of adoption of
or
modification of accounting policies during such period,
(g) Non-Cash
Charges pursuant to clauses (b) or (d) of the definition thereof for such
period,
(h) the
amount of any net income (or loss) for such period from disposed or discontinued
operations,
(i) the
amount of losses on asset sales (other than asset sales made in the ordinary
course of business), disposals and abandonments, and
(j) solely
for purposes of determining the Applicable Amount, the net income for such
period of any Restricted Subsidiary (other than any Guarantor) to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of its net income is not at the date of determination
wholly permitted without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived; provided that Consolidated
Net
Income of the Borrower will be increased by the amount of dividends or other
distributions or other payments actually paid in cash (or to the extent
converted into cash) to the Borrower or a Restricted Subsidiary thereof in
respect of such period, to the extent not already included therein.
Without
duplication of the foregoing, there shall be excluded from Consolidated Net
Income for any period the purchase accounting effects of adjustments to
inventory, property, equipment and intangible assets and deferred revenue in
component amounts required or permitted by GAAP and related authoritative
pronouncements (including the effects of such adjustments pushed down to the
Borrower and the Restricted Subsidiaries), as a result of the Transactions,
any
consummated acquisition whether consummated before or after the Closing Date,
or
the amortization or write-off of any amounts thereof.
“
Consolidated
Senior
Secured
Debt
” shall mean Consolidated Total Debt
secured by a Lien on any assets of the Borrower or any of its Restricted
Subsidiaries.
“
Consolidated
Senior Secured Debt to Consolidated EBITDA Ratio
” shall mean, as of any
date of determination, the ratio of (a) Consolidated Senior Secured Debt as
of such date to (b) Consolidated EBITDA for the Test Period then last
ended.
“
Consolidated
Total Assets
” shall mean, as of any date of determination, the amount
that would, in conformity with GAAP, be set forth opposite the caption “total
assets” (or any like caption) on a consolidated balance sheet of the Borrower
and the Restricted Subsidiaries at such date.
“
Consolidated
Total Debt
” shall mean, as of any date of determination, (a) all
Indebtedness of the types described in
clause (a)
(other than Permitted
Intercompany Indebtedness),
clause (d)
(but, in the case of
clause
(d)
, only to the extent of any unreimbursed drawings under any letter of
credit) and
clause (f)
of the definition thereof, in each case actually
owing by the Borrower and the Restricted Subsidiaries on such date and to the
extent appearing on the balance sheet of the Borrower determined on a
consolidated basis in accordance with GAAP (
provided
that the amount of
any Capitalized Lease Obligations or any such Indebtedness issued at a discount
to its face value shall be determined in accordance with GAAP)
minus
(b)
the aggregate cash and cash equivalents (in each case, free and clear of all
Liens, other than nonconsensual Liens permitted by
Section 10.2
and
Liens permitted by
Section 10.2(k)
and
(o)
and
clauses (i)
and
(ii)
of
Section 10.2(p)
) included in
the cash and cash equivalents accounts listed on the consolidated balance sheet
of the Borrower and the Restricted Subsidiaries as at such date.
“
Consolidated
Total Debt to Consolidated EBITDA Ratio
” shall mean, as of any date of
determination, the ratio of (a) Consolidated Total Debt as of the last day
of
the relevant Test Period to (b) Consolidated EBITDA for such Test
Period.
“
Consolidated
Working Capital
” shall mean, at any date, the excess of (a) the sum of
all amounts (other than cash and Permitted Investments) that would, in
conformity with GAAP, be set forth opposite the caption “total current assets”
(or any like caption) on a consolidated balance sheet of the Borrower and the
Restricted Subsidiaries at such date excluding the current portion of current
and deferred income taxes over (b) the sum of all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the
Borrower and the Restricted Subsidiaries on such date, including deferred
revenue but excluding, without duplication, (i) the current portion of any
Funded Debt, (ii) all Indebtedness consisting of Loans
and
Letter of Credit Exposure in each case under (and as defined in) the ABL
Facility to the extent otherwise included therein, (iii) the current
portion of interest and (iv) the current portion of current and deferred income
taxes.
“
Continuing
Director
” shall mean, at any date, an individual (a) who is a
member of the board of directors of the Borrower on the date hereof,
(b) who, as of the date of determination, has been a member of such board
of directors for at least the twelve preceding months, (c) who has been
nominated to be a member of such board of directors, directly or indirectly,
by
a Sponsor or Persons nominated by a Sponsor or (d) who has been nominated
to be a member of such board of directors by a majority of the other Continuing
Directors then in office.
“
Contract
Consideration
” shall have the meaning provided in the definition of
Excess Cash Flow.
“
Contractual
Requirement
” shall have the meaning provided in
Section 8.3
.
“
Converted
Restricted Subsidiary
” shall have the meaning provided in the
definition of the term “Consolidated EBITDA.”
“
Converted
Unrestricted Subsidiary
” shall have the meaning provided in the
definition of the term “Consolidated EBITDA.”
“
Credit
Documents
” shall mean this Agreement, the Guarantees, the Security
Documents and any promissory notes issued by the Borrower
hereunder.
“
Credit
Event
” shall mean and include the making (but not the conversion or
continuation) of a Loan.
“
Credit
Facility
” shall mean a category of Commitments and extensions of credit
thereunder.
“
Credit
Party
” shall mean each of the Borrower, the Guarantors and each other
Subsidiary of the Borrower that is a party to a Credit Document.
“
Cumulative
Consolidated Net Income
” shall mean, for any period, Consolidated Net
Income for such period, taken as a single accounting
period. Cumulative Consolidated Net Income may be a positive or
negative amount.
“
Debt
Incurrence Prepayment Event
” shall mean any issuance or incurrence by
the Borrower or any of the Restricted Subsidiaries of any Indebtedness
(excluding any Indebtedness permitted to be issued or incurred under
Section 10.1
(other than
Section 10.1(m)
(except with respect
to the Existing DC Sale Leaseback),
(o)
or
(y)
).
“
Declined
Proceeds
”
shall have the meaning provided in
Section 5.2(h)
.
“
Default
”
shall mean any event, act or condition that with notice or lapse of time, or
both, would constitute an Event of Default.
“
Defaulting
Lender
” shall mean any Lender with respect to which a Lender Default is
in effect.
“
Deferred
Net Cash Proceeds
” shall have the meaning provided such term in the
definition of “Net Cash Proceeds.”
“
Deferred
Net Cash Proceeds Payment Date
” shall have the meaning provided such
term in the definition of “Net Cash Proceeds.”
“
Designated
Non-Cash Consideration
” shall mean the fair market value of non-cash
consideration received by the Borrower or a Restricted Subsidiary in connection
with a Disposition pursuant to
Section 10.4(b)
that is designated as
Designated Non-Cash Consideration pursuant to a certificate of an Authorized
Officer of the Borrower, setting forth the basis of such valuation (which amount
will be reduced by the fair market value of the portion of the non-cash
consideration converted to cash within 180 days following the consummation
of
the applicable Disposition).
“
Disposed
EBITDA
” shall mean, with respect to any Sold Entity or Business or any
Converted Unrestricted Subsidiary for any period, the amount for such period
of
Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted
Subsidiary (determined as if references to the Borrower and the Restricted
Subsidiaries in the definition of Consolidated EBITDA were references to such
Sold Entity or Business or Converted Unrestricted Subsidiary and its respective
Subsidiaries), all as determined on a consolidated basis for such Sold Entity
or
Business or Converted Unrestricted Subsidiary, as the case may be.
“
Disposition
”
shall have the meaning provided in
Section 10.4(b)
.
“
Disqualified
Stock
” means, with respect to any Person, any Stock or Stock
Equivalents of such Person which, by its terms, or by the terms of any security
into which it is convertible or for which it is putable or exchangeable, or
upon
the happening of any event, matures or is mandatorily redeemable (other than
solely for Stock or Stock Equivalents that is not Disqualified Stock), other
than as a result of a change of control or asset sale, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof (other than as a result of a change of control or asset sale to the
extent the terms of such Stock or Stock Equivalents provide that such Stock
or
Stock Equivalents shall not be required to be repurchased or redeemed until
the
Tranche B Term Loan Maturity Date (or, if applicable, the latest New Term Loan
Maturity Date) has occurred or such repurchase or redemption is otherwise
permitted by this Agreement (including as a result of a waiver hereunder)),
in
whole or in part, in each case prior to the date that is ninety-one (91) days
after the Tranche B Term Loan Maturity Date (or, if applicable, the latest
New
Term Loan Maturity Date) hereunder; provided that if such Stock or Stock
Equivalents are issued to any plan for the benefit of employees of the Borrower
or its Subsidiaries or by any such plan to such employees, such Stock or Stock
Equivalents shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations; provided, further,
that
any Stock or Stock Equivalents held by any future, present or former employee,
director, manager or consultant, of the Borrower, any of its Subsidiaries or
any
of its direct or indirect parent companies or any other entity in which the
Borrower or a Restricted
Subsidiary
has an Investment and is designated in good faith as an “affiliate” by the Board
of Directors of the Borrower, in each case pursuant to any stockholders’
agreement, management equity plan or stock incentive plan or any other
management or employee benefit plan or agreement shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Borrower or its Subsidiaries.
“
Disregarded
Entity
” shall mean any Domestic Subsidiary that is disregarded for U.S.
federal income tax purposes.
“
Dividends
”
or “
dividends
” shall have the meaning provided in
Section 10.6
.
“
Documentation
Agent
” shall have the meaning assigned to that term as set forth in the
preamble hereto.
“
Dollars
”
and “
$
” shall mean dollars in lawful currency of the United
States of America.
“
Domestic
Subsidiary
” shall mean each Subsidiary of the Borrower that is
organized under the laws of the United States or any state thereof, or the
District of Columbia.
“
Environmental
Claims
” shall mean any and all actions, suits, orders, decrees,
demands, demand letters, claims, liens, notices of noncompliance, violation
or
potential responsibility or investigation (other than internal reports prepared
by the Borrower or any of the Subsidiaries (a) in the ordinary course of such
Person’s business or (b) as required in connection with a financing transaction
or an acquisition or disposition of real estate) or proceedings relating in
any
way to any Environmental Law or any permit issued, or any approval given, under
any such Environmental Law (hereinafter, “
Claims
”), including,
without limitation, (i) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and
(ii) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief relating
to
the presence, release or threatened release of Hazardous Materials or arising
from alleged injury or threat of injury to health or safety (to the extent
relating to human exposure to Hazardous Materials), or the environment
including, without limitation, ambient air, surface water, groundwater, land
surface and subsurface strata and natural resources such as
wetlands.
“
Environmental
Law
” shall mean any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code and rule of common law now
or
hereafter in effect and in each case as amended, and any binding judicial or
administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the protection
of
the environment, including, without limitation, ambient air, surface water,
groundwater, land surface and subsurface strata and natural resources such
as
wetlands, or human health or safety (to the extent relating to human exposure
to
Hazardous Materials), or Hazardous Materials.
“
Equity
Investments
” shall have the meaning provided in the preamble to this
Agreement.
“
ERISA
”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time. Section references to ERISA are to ERISA as in effect
at the date of this Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
“
ERISA
Affiliate
” shall mean each person (as defined in Section 3(9) of ERISA)
that together with the Borrower would be deemed to be a “single employer” within
the meaning of Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“
Event
of Default
” shall have the meaning provided in
Section
11
.
“
Excess
Cash Flow
” shall mean, for any period, an amount equal to the excess
of:
(a) the
sum, without duplication, of
(i)
Consolidated
Net Income for such
period,
(ii)
an
amount equal to the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated Net
Income and cash receipts included in
clauses (a)
through
(f)
of
the definition of Consolidated Net Income and excluded in arriving at such
Consolidated Net Income,
(iii)
decreases
in Consolidated Working
Capital for such period (other than any such decreases arising from acquisitions
by the Borrower and the Restricted Subsidiaries completed during such period
or
the application of purchase accounting),
(iv)
an amount equal to the aggregate net non-cash loss on Dispositions by the
Borrower and the Restricted Subsidiaries during such period (other than
Dispositions in the ordinary course of business) to the extent deducted in
arriving at such Consolidated Net Income; and
(v)
cash
receipts in respect of Hedge
Agreements during such fiscal year to the extent not otherwise included in
such
Consolidated Net Income;
over
(b) the sum, without duplication, of
(i)
an
amount equal to the amount of all
non-cash credits included in arriving at such Consolidated Net Income and cash
charges included in
clauses (a)
through
(f)
of the definition of
Consolidated Net Income and included in arriving at such Consolidated Net
Income,
(ii)
without
duplication of amounts deducted
pursuant to
clause (xi)
below in prior years, the amount of Capital
Expenditures or acquisitions of intellectual property accrued or made in cash
during such period, except to the extent that such Capital Expenditures or
acquisitions were financed with the
proceeds
of Indebtedness of the Borrower or the Restricted Subsidiaries (unless such
Indebtedness has been repaid),
(iii)
the
aggregate amount of all principal
payments of Indebtedness of the Borrower and the Restricted Subsidiaries
(including (A) the principal component of payments in respect of
Capitalized Lease Obligations, (B) the amount of any repayment of Term
Loans pursuant to
Section 2.5
and (C) the amount of a mandatory
prepayment of Term Loans pursuant to
Section 5.2(a)(i)
to the extent
required due to a Disposition that resulted in an increase to Consolidated
Net
Income and not in excess of the amount of such increase, but excluding
(x) all other prepayments of Term Loans, (y) all prepayments of
Revolving Credit Loans and Swingline Loans under and as defined in the ABL
Facility and (z) all prepayments in respect of any other revolving credit
facility, except in the case of
clauses (y)
and
(z)
to the extent
there is an equivalent permanent reduction in commitments thereunder), except
to
the extent financed with the proceeds of other Indebtedness of the Borrower
or
the Restricted Subsidiaries,
(iv)
an amount equal to the aggregate net non-cash gain on Dispositions by the
Borrower and the Restricted Subsidiaries during such period (other than
Dispositions in the ordinary course of business) to the extent included in
arriving at such Consolidated Net Income,
(v)
increases
in Consolidated Working
Capital for such period (other than any such increases arising from acquisitions
by the Borrower and the Restricted Subsidiaries completed during such period
or
the application of purchase accounting),
(vi)
payments
by the Borrower and the
Restricted Subsidiaries during such period in respect of long-term liabilities
of the Borrower and the Restricted Subsidiaries other than Indebtedness, to
the
extent not already deducted from Consolidated Net Income,
(vii)
without duplication of amounts deducted pursuant to
clause (xi)
below in
prior fiscal years, the aggregate amount of cash consideration paid by the
Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection
with Investments (including acquisitions) made during such period pursuant
to
Section 10.5
to the extent that such Investments were financed with
internally generated cash flow of the Borrower and the Restricted
Subsidiaries,
(viii) the
amount of dividends paid during such period (on a consolidated basis) by the
Borrower and the Restricted Subsidiaries pursuant to
Section 10.6(a)
,
(b)
or
(d)
, to the extent such dividends were financed with
internally generated cash flow of the Borrower and the Restricted
Subsidiaries,
(ix)
the
aggregate amount of expenditures
actually made by the Borrower and the Restricted Subsidiaries in cash during
such period (including
expenditures
for the payment of financing fees) to the extent that such expenditures are
not
expensed during such period and are not deducted in calculating Consolidated
Net
Income,
(x)
the
aggregate amount of any premium,
make-whole or penalty payments actually paid in cash by the Borrower and the
Restricted Subsidiaries during such period that are made in connection with
any
prepayment of Indebtedness to the extent that such payments are not deducted
in
calculating Consolidated Net Income,
(xi)
without duplication of amounts
deducted from
Excess Cash Flow in prior periods, the aggregate consideration required to
be
paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant
to
binding contracts (the “
Contract Consideration
”) entered into
prior to or during such period relating to Permitted Acquisitions, Capital
Expenditures or acquisitions of intellectual property to be consummated or
made
during the period of four consecutive fiscal quarters of the Borrower following
the end of such period,
provided
that to the extent the aggregate amount
of internally generated cash actually utilized to finance such Permitted
Acquisitions, Capital Expenditures or acquisitions of intellectual property
during such period of four consecutive fiscal quarters is less than the Contract
Consideration, the amount of such shortfall shall be added to the calculation
of
Excess Cash Flow at the end of such period of four consecutive fiscal
quarters,
(xii)
the amount of taxes (including penalties and interest) paid in cash or tax
reserves set aside or payable (without duplication) in such period to the extent
they exceed the amount of tax expense deducted in determining Consolidated
Net
Income for such period, and
(xiii)
cash expenditures in respect of Hedge Agreements during such fiscal year to
the
extent not deducted in arriving at such Consolidated Net Income.
“
Excluded
Stock and Stock Equivalents
” shall mean (i) any Stock or Stock
Equivalents with respect to which, in the reasonable judgment of the Collateral
Agent (confirmed in writing by notice to the Borrower), the cost or other
consequences (including any adverse tax consequences) of pledging such Stock
or
Stock Equivalents in favor of the Secured Parties under the Security Documents
shall be excessive in view of the benefits to be obtained by the Lenders
therefrom, (iii) solely in the case of any pledge of Stock and Stock Equivalents
of any Foreign Subsidiary to secure the Obligations, any Stock or Stock
Equivalents of any class of such Foreign Subsidiary in excess of 65% of the
outstanding Stock or Stock Equivalents of such class (such percentage to be
adjusted upon any Change in Law as may be required to avoid adverse U.S. federal
income tax consequences to the Borrower or any Subsidiary), (iv) any Stock
or
Stock Equivalents to the extent the pledge thereof would violate any applicable
Requirement of Law, (v) in the case of (A) any Stock or Stock Equivalents of
any
Subsidiary to the extent such Stock or Stock Equivalents are subject to a Lien
permitted by
Section 10.2(h)
or (B) any Stock or Stock Equivalents of any
Subsidiary that is not wholly-owned by the Borrower and its Subsidiaries at
the
time such Subsidiary becomes a Subsidiary, any Stock or Stock
Equivalents
of
each
such Subsidiary described in
clause (A)
or
(B)
to the extent (1)
that a pledge thereof to secure the Obligations is prohibited by any applicable
Contractual Requirement (other than customary non-assignment provisions which
are ineffective under the Uniform Commercial Code or other applicable law),
(2)
any Contractual Requirement prohibits such a pledge without the consent of
any
other party;
provided
that this clause (2) shall not apply if (x) such
other party is a Credit Party or wholly-owned Subsidiary or (y) consent has
been
obtained to consummate such pledge (it being understood that the foregoing
shall
not be deemed to obligate the Borrower or any Subsidiary to obtain any such
consent)) and for so long as such Contractual Requirement or replacement or
renewal thereof is in effect, or (3) a pledge thereof to secure the Obligations
would give any other party (other than a Credit Party or wholly-owned
Subsidiary) to any contract, agreement, instrument or indenture governing such
Stock or Stock Equivalents the right to terminate its obligations thereunder
(other than customary non-assignment provisions which are ineffective under
the
Uniform Commercial Code or other applicable law) and (vi) any Stock or Stock
Equivalents of any Subsidiary to the extent that (A) the pledge of such Stock
or
Stock Equivalents would result in adverse tax consequences to the Borrower
or
any Subsidiary as reasonably determined by the Borrower and (B) such Stock
or
Stock Equivalents have been identified in writing to the Collateral Agent by
an
Authorized Officer of the Borrower.
“
Excluded
Subsidiary
” shall mean (a) each Domestic Subsidiary listed on
Schedule 1.1(d)(i)
hereto and each future Domestic Subsidiary, in each
case, for so long as any such Subsidiary does not constitute a Material
Subsidiary, (b) each Domestic Subsidiary that is not a wholly-owned Subsidiary
on any date such Subsidiary would otherwise be required to become a Guarantor
pursuant to the requirements of
Section 9.11
(for so long as such
Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any
Disregarded Entity substantially all the assets of which consist of Stock and
Stock Equivalents of Foreign Subsidiaries, (d) each Domestic Subsidiary that
is
prohibited by any applicable Contractual Requirement or Requirement of Law
from
guaranteeing or granting Liens to secure the Obligations at the time such
Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction
or any replacement or renewal thereof is in effect), (e) each Domestic
Subsidiary that is a Subsidiary of a Foreign Subsidiary, (f) each other Domestic
Subsidiary acquired pursuant to a Permitted Acquisition financed with secured
Indebtedness incurred pursuant to
Section 10.1(j)
and permitted by the
proviso to
subclause (y)
of
Section 10.1(j)(i)
and each Restricted
Subsidiary thereof that guarantees such Indebtedness to the extent and so long
as the financing documentation relating to such Permitted Acquisition to which
such Restricted Subsidiary is a party prohibits such Restricted Subsidiary
from
guaranteeing, or granting a Lien on any of its assets to secure, the
Obligations, (g) any other Domestic Subsidiary with respect to which, in
the reasonable judgment of the Administrative Agent (confirmed in writing by
notice to the Borrower), the cost or other consequences (including any adverse
tax consequences) of providing a Guarantee of the Obligations shall be excessive
in view of the benefits to be obtained by the Lenders therefrom, (h) each
Unrestricted Subsidiary, (i) any Receivables Subsidiary and (j)
ARIC.
“
Excluded
Taxes
” shall mean, with respect to any Agent or any Lender,
(a) net income taxes and franchise and excise taxes (imposed in lieu of net
income taxes) imposed on such Agent or Lender, (b) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between
such
Agent or Lender and the jurisdiction of the
Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising from such Agent
or
Lender having executed, delivered or performed its obligations or received
a
payment under, or having been a party to or having enforced, this Agreement
or
any other Credit Document), (c) any U.S. federal withholding tax that is imposed
on amounts payable to any Lender under the law in effect at the time such Lender
becomes a party to this Agreement (or, in the case of a Participant, on the
date
such Participant became a Participant hereunder);
provided
that this
subclause (c)
shall not apply to the extent that (x) the indemnity
payments or additional amounts any Lender (or Participant) would be entitled
to
receive (without regard to this
subclause (c)
) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Lender (or Participant) would have been
entitled to receive in the absence of such assignment, participation or transfer
or (y) any Tax is imposed on a Lender in connection with an interest or
participation in any Loan or other obligation that such Lender was required
to
acquire pursuant to
Section 13.8(a)
or that such Lender acquired pursuant
to
Section 13.7
(it being understood and agreed, for the avoidance of
doubt, that any withholding tax imposed on a Lender as a result of a Change
in
Law occurring after the time such Lender became a party to this Agreement (or
designates a new lending office) shall not be an Excluded Tax) and (d) any
Tax
to the extent attributable to such Lender’s failure to comply with
Section 5.4(e)
(in the case of any Non-U.S. Lender) or
Section
5.4(j)
(in the case of a U.S. Lender).
“
Existing
DC Sale Leaseback
” shall mean any Sale Leaseback consummated by the
Borrower or any of the Restricted Subsidiaries after the Closing Date to replace
one or more of the Sale Leasebacks existing on the Closing Date for the
distribution centers in Indianola, Mississippi; Ardmore, Oklahoma; and Fulton,
Missouri.
“
Federal
Funds Effective Rate
” shall mean, for any day, the weighted average of
the
per annum
rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on
such
day, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York;
provided
that (a) if such day is not a Business
Day, the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple
of
1/100 of 1%) charged to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
“
Foreign
Asset Sale
” shall have the meaning provided in
Section
5.2(i)
.
“
Foreign
Plan
” shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by the Borrower or any
of
its Subsidiaries with respect to employees employed outside the United
States.
“
Foreign
Subsidiary
” shall mean each Subsidiary of the Borrower that is not a
Domestic Subsidiary.
“
Fund
”
shall mean any Person (other than a natural person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course.
“
Funded
Debt
” shall mean all indebtedness of the Borrower and the Restricted
Subsidiaries for borrowed money that matures more than one year from the date
of
its creation or matures within one year from such date that is renewable or
extendable, at the option of the Borrower or any Restricted Subsidiary, to
a
date more than one year from such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit during
a
period of more than one year from such date, including all amounts of Funded
Debt required to be paid or prepaid within one year from the date of its
creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
“
GAAP
”
shall mean generally accepted accounting principles in the United States of
America, as in effect from time to time;
provided
,
however
, that
if the Borrower notifies the Administrative Agent that the Borrower requests
an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been
withdrawn or such provision amended in accordance herewith.
“
Governmental
Authority
” shall mean any nation, sovereign or government, any state,
province, territory or other political subdivision thereof, and any entity
or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including a central
bank or stock exchange.
“
Guarantee
”
shall mean (a) the Guarantee made by each Guarantor in favor of the
Administrative Agent for the benefit of the Secured Parties, substantially
in
the form of
Exhibit B
, and (b) any other guarantee of the Obligations
made by a Restricted Subsidiary that is a Domestic Subsidiary in form and
substance reasonably acceptable to the Administrative Agent, in each case as
the
same may be amended, supplemented or otherwise modified from time to
time.
“
Guarantee
Obligations
” shall mean, as to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the “
primary obligor
”) in any manner, whether directly
or indirectly, including any obligation of such Person, whether or not
contingent, (a) to purchase any such Indebtedness or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i) for
the
purchase or payment of any such Indebtedness or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof;
provided
,
however
, that the term “Guarantee
Obligations” shall not
include
endorsements of instruments for deposit or collection in the ordinary course
of
business or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness). The amount of any Guarantee Obligation
shall be deemed to be an amount equal to the stated or determinable amount
of
the Indebtedness in respect of which such Guarantee Obligation is made or,
if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
“
Guarantors
”
shall mean (a) each Domestic Subsidiary that is party to the Guarantee on the
Closing Date and (b) each Domestic Subsidiary that becomes a party to the
Guarantee after the Closing Date pursuant to
Section 9.11
or
otherwise.
“
Hazardous
Materials
” shall mean (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing
regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals,
materials or substances defined as or included in the definition of “hazardous
substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous
waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”,
“contaminants”, or “pollutants”, or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or substance,
which is prohibited, limited or regulated by any Environmental Law.
“
Hedge
Agreements
” shall mean interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
cross-currency rate swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements, and other similar agreements entered into by the Borrower or any
Restricted Subsidiary in the ordinary course of business (and not for
speculative purposes) for the principal purpose of protecting the Borrower
or
any of the Restricted Subsidiaries against fluctuations in interest rates,
currency exchange rates or commodity prices.
“
Hedge
Bank
” shall mean any Person (other than the Borrower or any of its
Subsidiaries) that either (x) at the time it enters into a Secured Hedge
Agreement or (y) with respect to any Secured Hedge Agreement that is in effect
on the Closing Date, on the Closing Date, is a Lender or Agent or an Affiliate
of a Lender or Agent, in its capacity as a party to such Secured Hedge
Agreement.
“
Historical
Financial Statements
” shall mean the audited consolidated balance
sheets of the Borrower as of January 28, 2005, February 3, 2006 and February
2,
2007 and the audited consolidated statements of income, stockholders’ equity and
cash flows of the Borrower for each of the fiscal years in the three year period
ending on February 2, 2007.
“
Holdings
”
shall mean Buck Holdings, L.P., a Delaware limited partnership, and its
successors.
“
Increased
Amount Date
” shall have the meaning provided in
Section
2.14
.
“
Indebtedness
”
of any Person shall mean (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (c) the deferred purchase price of
assets or services that in accordance with GAAP would be included as a liability
on the balance sheet of such Person, (d) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (e) all Indebtedness of any other Person secured by
any
Lien on any property owned by such Person, whether or not such Indebtedness
has
been assumed by such Person, (f) the principal component of all Capitalized
Lease Obligations of such Person, (g) all obligations of such Person under
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements and other similar agreements and (h) without duplication, all
Guarantee Obligations of such Person,
provided
that Indebtedness shall
not include (i) trade and other ordinary course payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or
prepaid revenue and (iii) purchase price holdbacks in respect of a portion
of the purchase price of an asset to satisfy warranty or other unperformed
obligations of the respective seller. The amount of Indebtedness of any Person
for purposes of
clause (e)
shall be deemed to be equal to the lesser of
(i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market
value of the property encumbered thereby as determined by such Person in good
faith.
“
indemnified
liabilities
” shall have the meaning provided in Section
13.5.
“
Indemnified
Taxes
” shall mean all Taxes (including Other Taxes) other than (i)
Excluded Taxes and (ii) any interest, penalties or expenses caused by an Agent’s
or Lender’s gross negligence or willful misconduct.
“Indentures
”
shall mean the Senior Notes Indenture and the Senior Subordinated Notes
Indenture.
“Insolvency
or Liquidation Proceeding”
shall mean:
(a) any
voluntary or involuntary case or proceeding under the Bankruptcy Code with
respect to any Credit Party;
(b) any
other voluntary or involuntary insolvency, reorganization or bankruptcy case
or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding with respect to any Credit Party or with respect to a
material portion of their respective assets;
(c) any
liquidation, dissolution, reorganization or winding up of any Credit Party
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy; or
(d) any
assignment for the benefit of creditors or any other marshalling of assets
and
liabilities of any Credit Party.
“
Intercreditor
Agreement
” shall mean the Intercreditor Agreement, dated as of the
Closing Date, among the Collateral Agent and the ABL Collateral Agent, as the
same may be amended, restated or modified from time to time.
“
Interest
Period
” shall mean, with respect to any Term Loan, the interest period
applicable thereto, as determined pursuant to
Section 2.9
.
“
Investment
”
shall mean, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of Stock, Stock
Equivalents, bonds, notes, debentures, partnership or other ownership interests
or other securities of any other Person (including any “short sale” or any sale
of any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person) (including
any
partnership or joint venture); (c) the entering into of any guarantee of,
or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division
of
such Person;
provided
that, in the event that any Investment is made by
the Borrower or any Restricted Subsidiary in any Person through substantially
concurrent interim transfers of any amount through one or more other Restricted
Subsidiaries, then such other substantially concurrent interim transfers shall
be disregarded for purposes of
Section 10.5
.
“
Investment
Grade Rating
” shall mean a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent
rating by any other nationally recognized statistical rating agency selected
by
the Borrower.
“
Investment
Grade Securities
” shall mean (a) securities issued or directly and
fully guaranteed or insured by the government of the United States of America
or
any agency or instrumentality thereof (other than Permitted Investments), (b)
debt securities or debt instruments with an Investment Grade Rating, but
excluding any debt securities or instruments constituting loans or advances
among the Borrower and its Subsidiaries and (c) investments in any fund that
invests exclusively in investments of the type described in clauses (a) and
(b),
which fund may also hold immaterial amounts of cash pending investment and
distribution.
“
Investors
”
shall mean the Sponsors, the Management Investors and each other investor
providing a portion of the Equity Investments on the Closing Date.
“
Joinder
Agreement
” shall mean an agreement substantially in the form of
Exhibit L
.
“
Joint
Lead Arrangers and Bookrunners
” shall mean Goldman Sachs Credit
Partners L.P., Citigroup Global Markets Inc., Lehman Brothers Inc. and Wachovia
Capital Markets, LLC.
“
JV
Distribution Amount
” means, at any time, the aggregate amount of cash
distributed to the Borrower or any Restricted Subsidiary by any joint venture
that is not a
S
ubsidiary
(regardless of the form of legal entity) since the Closing Date and prior to
such time (without duplication of any amount treated as a reduction in the
outstanding amount of Investments by the Borrower or any Restricted Subsidiary
pursuant to
clause (i)
or
(v)
of
Section 10.5
) and only to
the extent that neither the Borrower nor any Restricted Subsidiary is under
any
obligation to repay such amount to such joint venture.
“
KKR
”
shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR
Associates, L.P.
“
Lender
”
shall have the meaning provided in the preamble to this Agreement.
“
Lender
Default
” shall mean (a) the failure (which has not been cured) of a
Lender to make available its portion of any Borrowing that it is required to
make hereunder or (b) a Lender having notified the Administrative Agent and/or
the Borrower that it does not intend to comply with the obligations under
Section 2.1(a)
or (c) a Lender being deemed insolvent or becoming
the subject of a bankruptcy or insolvency proceeding.
“
LIBOR
Loan
” shall mean any Term Loan bearing interest at a rate determined by
reference to the LIBOR Rate.
“
LIBOR
Rate
” shall mean, for any Interest Period with respect to a LIBOR Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate
(“
BBA LIBOR
”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
for
deposits in such currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate
is not available at such time for any reason, then the “LIBOR Rate” for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first
day
of such Interest Period in same day funds in the approximate amount of the
LIBOR
Loan being made, continued or converted by the Administrative Agent and with
a
term equivalent to such Interest Period would be offered by the Administrative
Agent’s London Branch to major banks in the applicable London interbank
eurocurrency market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period.
“
Lien
”
shall mean any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement or any lease or license in the nature thereof).
“
Loan
”
shall mean any Term Loan or New Term Loan made by any Lender
hereunder.
“
Management
Investors
” shall mean the directors, management officers and employees
of the Borrower and its Subsidiaries on the Closing Date.
“
Material
Adverse Effect
” shall mean a circumstance or condition affecting the
business, assets, operations, properties or financial condition of the Borrower
and the Subsidiaries, taken as a whole, that would, individually or in the
aggregate, materially adversely affect (a) the ability of the Borrower and
the other Credit Parties, taken as a whole, to perform their payment obligations
under this Agreement or any of the other Credit Documents or (b) the rights
and remedies of the Administrative Agent and the Lenders under this Agreement
or
any of the other Credit Documents.
“
Material
Subsidiary
” shall mean, at any date of determination, each Restricted
Subsidiary of the Borrower (a) whose total assets at the last day of the
Test Period for which Section 9.1 Financials have been delivered were equal
to or greater than 2.5% of the Consolidated Total Assets of the Borrower and
the
Restricted Subsidiaries at such date or (b) whose revenues during such Test
Period were equal to or greater than 2.5% of the consolidated revenues of the
Borrower and the Restricted Subsidiaries for such period, in each case
determined in accordance with GAAP;
provided
that if, at any time and
from time to time after the Closing Date, Restricted Subsidiaries that are
not
Material Subsidiaries have, in the aggregate, (x) total assets at the last
day
of such Test Period equal to or greater than 10.0% of the Consolidated Total
Assets of the Borrower and the Restricted Subsidiaries at such date or (y)
revenues during such Test Period equal to or greater than 10.0% of the
consolidated revenues of the Borrower and the Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP, then the Borrower
shall, on the date on which financial statements for such quarter are delivered
pursuant to this Agreement, designate in writing to the Administrative Agent
one
or more of such Restricted Subsidiaries as “Material Subsidiaries.”
“
Maturity
Date
” shall mean the Tranche B Term Loan Maturity Date and the New Term
Loan Maturity Date.
“
Maximum
Incremental Facilities Amount
” shall mean, at any date of
determination, the difference of (a) $325,000,000 minus (b) the aggregate
principal amount of incremental commitments obtained under the ABL Facility
pursuant to
Section 2.14
of the ABL Facility Agreement after the Closing
Date but prior to such date of determination.
“
Merger
”
shall have the meaning provided in the preamble to this Agreement.
“
Merger
Sub
” shall mean Buck Acquisition Corp., a Tennessee
corporation.
“
Minimum
Borrowing Amount
” shall mean (a) with respect to a Borrowing of LIBOR
Loans, $5,000,000 and (b) with respect to a Borrowing of ABR Loans,
$1,000,000.
“
Minimum
Equity Amount
” shall have the meaning provided in the preamble to this
Agreement.
“
Moody’s
”
shall mean Moody’s Investors Service, Inc. or any successor by merger or
consolidation to its business.
“
Mortgage
”
shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement or other security document entered into by the owner of
a
Mortgaged
Property and the Collateral Agent in respect of that Mortgaged Property to
secure the Obligations, substantially in the form of
Exhibit C
, as
the same may be amended, supplemented or otherwise modified from time to
time.
“
Mortgaged
Property
” shall mean, initially, each parcel of real estate and the
improvements thereto owned by a Credit Party and identified on
Schedule 1.1(b)
, and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 9.14
.
“
Multiemployer
Plan
” shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“
Net
Cash Proceeds
” shall mean, with respect to any Prepayment Event,
(a) the gross cash proceeds (including payments from time to time in
respect of installment obligations, if applicable) received by or on behalf
of
the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment
Event, as the case may be, less (b) the sum of:
(i)
the
amount, if any, of all taxes paid
or estimated by the Borrower in good faith to be payable by the Borrower or
any
of the Restricted Subsidiaries in connection with such Prepayment
Event,
(ii)
the
amount of any reasonable reserve
established in accordance with GAAP against any liabilities (other than any
taxes deducted pursuant to
clause (i)
above) (x) associated
with the assets that are the subject of such Prepayment Event and
(y) retained by the Borrower or any of the Restricted Subsidiaries,
provided
that the amount of any subsequent reduction of such reserve
(other than in connection with a payment in respect of any such liability)
shall
be deemed to be Net Cash Proceeds of such Prepayment Event occurring on the
date
of such reduction,
(iii)
the
amount of any Indebtedness (other
than Indebtedness hereunder or under the ABL Facility) secured by a Lien on
the
assets that are the subject of such Prepayment Event to the extent that the
instrument creating or evidencing such Indebtedness requires that such
Indebtedness be repaid upon consummation of such Prepayment Event,
(iv)
in
the case of any Asset Sale
Prepayment Event or Casualty Event or Permitted Sale Leaseback (other than
the
Existing DC Sale Leasebacks), the amount of any proceeds of such Prepayment
Event that the Borrower or any Restricted Subsidiary has reinvested (or intends
to reinvest within the Reinvestment Period or has entered into a binding
commitment prior to the last day of the Reinvestment Period to reinvest) in
the
business of the Borrower or any of the Restricted Subsidiaries (subject to
Section 10.9
),
provided
that any portion of such proceeds
that has not been so reinvested within such Reinvestment Period (with respect
to
such Prepayment Event, the “
Deferred Net Cash Proceeds
”) shall,
unless the Borrower or a Restricted Subsidiary has entered into a binding
commitment prior to the last day of such Reinvestment Period to reinvest such
proceeds, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment
Event, Casualty Event or Permitted Sale Leaseback occurring on the last day
of
such
Reinvestment
Period or, if later, 180 days after the date the Borrower or such Restricted
Subsidiary has entered into such binding commitment, as applicable (such last
day or 180
th
day, as applicable, the “
Deferred Net Cash Proceeds Payment
Date
”), and (y) be applied to the repayment of Term Loans in
accordance with
Section 5.2(a)(i)
,
(v)
in
the case of any Asset Sale
Prepayment Event, Casualty Event or Permitted Sale Leaseback (other than the
Existing DC Sale Leasebacks) by a non-wholly-owned Restricted Subsidiary, the
pro rata
portion of the Net Cash Proceeds thereof (calculated without
regard to this
clause (v)
) attributable to minority interests and
not available for distribution to or for the account of the Borrower or a
wholly-owned Restricted Subsidiary as a result thereof, and
(vi)
reasonable and customary fees paid by the Borrower or a Restricted Subsidiary
in
connection with any of the foregoing,
in
each
case only to the extent not already deducted in arriving at the amount referred
to in
clause (a)
above.
“
New
B-1 Lenders
” shall have the meaning provided in
Section
11.15
.
“
New
B-1 Loans
” shall have the meaning provided in
Section
11.15
.
“
New
B-2 Lenders
” shall have the meaning provided in
Section
11.15
.
“
New
B-2 Loans
” shall have the meaning provided in
Section
11.15
.
“
New
Term Loan Commitments
” shall have the meaning provided in
Section 2.14
.
“
New
Term Loan Lender
” shall have the meaning provided in
Section
2.14
.
“
New
Term Loan Maturity Date
” shall mean the date on which a New Term Loan
matures.
“
New
Term Loan Repayment Amount
” shall have the meaning provided in
Section 2.5(c)
.
“
New
Term Loan Repayment Date
” shall have the meaning provided in
Section
2.5(c)
.
“
New
Term Loans
” shall have the meaning provided in
Section 2.14
.
“
Non-Cash
Charges
” shall mean, without duplication, (a) losses on non-ordinary
course asset sales, disposals or abandonments, (b) any impairment charge or
asset write-off related to intangible assets (including goodwill), long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c)
all
losses from investments recorded using the equity method, (d) stock-based awards
compensation expense, including any such charges arising from stock options,
restricted stock grants or other equity incentive grants, and any cash
compensation
charges
associated with the rollover or acceleration of stock-based awards or payment
of
stock options in connection with the Transactions, and (e) other non-cash
charges (
provided
that if any non-cash charges referred to in this
clause (e)
represent an accrual or reserve for potential cash items in
any future period, the cash payment in respect thereof in such future period
shall be subtracted from Consolidated EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior
period).
“
Non-Consenting
Lender
” shall have the meaning provided in
Section
13.7(b)
.
“
Non-Defaulting
Lender
” shall mean and include each Lender other than a Defaulting
Lender.
“
Non-U.S.
Lender
” shall mean any Agent or Lender that is not, for United States
federal income tax purposes, (a) an individual who is a citizen or resident
of the United States, (b) a corporation, partnership or entity treated as a
corporation or partnership created or organized in or under the laws of the
United States, or any political subdivision thereof, (c) an estate whose
income is subject to U.S. federal income taxation regardless of its source
or
(d) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
persons have the authority to control all substantial decisions of such trust
or
a trust that has a valid election in effect under applicable U.S. Treasury
regulations to be treated as a United States person.
“
Non-U.S.
Participant
” shall mean any Participant that if it were a Lender would
qualify as a Non-U.S. Lender.
“
Notes
”
shall have the meaning set forth in the preamble.
“
Notes
Offerings
” shall have the meaning set forth in the
preamble.
“
Notice
of Borrowing
” shall have the meaning provided in
Section
2.3(a)
.
“
Notice
of Conversion or Continuation
” shall have the meaning provided in
Section 2.6
.
“
Obligations
”
shall mean all advances to, and debts, liabilities, obligations, covenants
and
duties of, any Credit Party arising under any Credit Document or otherwise
with
respect to any Loan or under any Secured Hedge Agreement, in each case, entered
into with the Borrower or any of its Subsidiaries, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Credit Party or any
Affiliate thereof of any proceeding under any bankruptcy or insolvency law
naming such Person as the debtor in such proceeding, regardless of whether
such
interest and fees are allowed claims in such proceeding. Without
limiting the generality of the foregoing, the Obligations of the Credit Parties
under the Credit Documents (and any of their Subsidiaries to the extent they
have obligations under the Credit Documents) include the obligation (including
guarantee obligations) to pay principal, interest, charges, expenses, fees,
attorney costs, indemnities and other amounts payable by any Credit Party under
any Credit Document.
“
Other
Taxes
” shall mean any and all present or future stamp, registration,
documentary or any other excise, property or similar taxes (including interest,
fines, penalties, additions to tax and related expenses with regard thereto)
arising from any payment made or required to be made under this Agreement or
any
other Credit Document or from the execution or delivery of, registration or
enforcement of, consummation or administration of, or otherwise with respect
to,
this Agreement or any other Credit Document.
“
Overnight
Rate
” shall mean, for any day, the greater of (a) the Federal Funds
Effective Rate and (b) an overnight rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation.
“
Participant
”
shall have the meaning provided in
Section 13.6(c)
.
“
Patriot
Act
” shall have the meaning provided in
Section
13.18
.
“
PBGC
”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
“
Pension
Act
” shall mean the Pension Protection Act of 2006, as it presently
exists or as it may be amended from time to time.
“
Perfection
Certificate
” shall mean a certificate of each Borrower in the form of
Exhibit D
or any other form approved by the Administrative
Agent.
“
Permitted
Acquisition
” shall mean the acquisition, by merger or otherwise, by the
Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock
Equivalents, so long as (a) such acquisition and all transactions related
thereto shall be consummated in accordance with applicable law; (b) such
acquisition shall result in the issuer of such Stock or Stock Equivalents and
its Subsidiaries becoming a Restricted Subsidiary and a Subsidiary Guarantor,
to
the extent required by
Section 9.11
; (c) such acquisition shall
result in the Administrative Agent, for the benefit of the applicable Lenders,
being granted a security interest in any Stock, Stock Equivalent or any assets
so acquired, to the extent required by
Sections 9.11
,
9.12
and/or
9.14
; (d) each Person (or, as applicable, the assets) so
acquired shall
be in (or with respect to assets, useful for engaging in) the same or generally
related line of business as conducted by the Borrower and its Subsidiaries
on
the Closing Date; and (e) both immediately before and after giving effect
to such acquisition, no Default or Event of Default shall have occurred and
be
continuing.
“
Permitted
Additional Debt
” shall mean unsecured Indebtedness issued by the
Borrower or a Guarantor, (a) the terms of which (i) do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the Tranche B Term Loan Maturity Date (or, if later, the
latest New Term Loan Maturity Date) (other than customary offers to purchase
upon a change of control, asset sale or event of loss and customary acceleration
rights after an event of default) and (ii) to the extent the same are
subordinated, provide for customary subordination to the Obligations under
the
Credit Documents, (b) the covenants, events of default, guarantees and
other terms of which (other than interest rate and redemption premiums), taken
as a whole, are not more restrictive to the Borrower and the Restricted
Subsidiaries than
those
herein (or the extent such Permitted Additional Debt constitutes refinancing
Indebtedness of the Senior Subordinated Notes, those applicable to the Senior
Subordinated Notes being so refinanced);
provided
that a certificate of
an Authorized Officer of the Borrower is delivered to the Administrative Agent
at least five Business Days (or such shorter period as the Administrative Agent
may reasonably agree) prior to the incurrence of such Indebtedness, together
with a reasonably detailed description of the material terms and conditions
of
such Indebtedness or drafts of the documentation relating thereto, stating
that
the Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the Administrative Agent
notifies the Borrower within such period that it disagrees with such
determination (including a reasonable description of the basis upon which it
disagrees) and (c) of which no Subsidiary of the Borrower (other than a
Guarantor or any guarantor of the Indebtedness being refinanced by such
Permitted Additional Debt, if applicable) is an obligor.
“
Permitted
Holders
” shall mean each of (a) the Sponsors and (b) the
Management Investors.
“
Permitted
Intercompany Indebtedness
” shall mean all Indebtedness of the Borrower
or any Restricted Subsidiary owing to the Borrower or any other Subsidiary
having a term not exceeding 364 days (inclusive of any and all rollovers and
extensions) and incurred in the ordinary course of business; provided that
the
aggregate amount of Permitted Intercompany Indebtedness owed by Subsidiaries
that are not Credit Parties to Credit Parties shall not exceed
$100,000,000.
“
Permitted
Investments
” shall mean:
(a) securities
issued or unconditionally guaranteed by the United States government or any
agency or instrumentality thereof, in each case having maturities and/or reset
dates of not more than 24 months from the date of acquisition
thereof;
(b) securities
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than 24 months from the date of acquisition thereof
and,
at the time of acquisition, having an investment grade rating generally
obtainable from either S&P or Moody’s (or, if at any time neither S&P
nor Moody’s shall be rating such obligations, then from another nationally
recognized rating service);
(c) commercial
paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from
either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall
be rating such obligations, an equivalent rating from another nationally
recognized rating service);
(d) domestic
and LIBOR certificates of deposit or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof issued by any Lender or any
other bank having combined capital and surplus of not less than
$500,000,000
in the case of domestic banks and $100,000,000 (or the Dollar Equivalent
thereof) in the case of foreign banks;
(e) repurchase
agreements with a term of not more than 90 days for underlying securities
of the type described in
clauses (a)
,
(b)
and
(d)
above
entered into with any bank meeting the qualifications specified in
clause
(d)
above or securities dealers of recognized national
standing;
(f) marketable
short-term money market and similar funds (x) either having assets in excess
of
$500,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P
or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service);
(g) shares
of investment companies that are registered under the Investment Company Act
of
1940 and substantially all the investments of which are one or more of the
types
of securities described in
clauses (a)
through
(f)
above;
and
(h) in
the case of Investments by any Restricted Foreign Subsidiary or Investments
made
in a country outside the United States of America, other customarily utilized
high-quality Investments in the country where such Restricted Foreign Subsidiary
is located or in which such Investment is made.
“
Permitted
Liens
” shall mean:
(a) Liens
for taxes, assessments or governmental charges or claims not yet overdue for
a
period of more than 30 days or that are being contested in good faith and by
appropriate proceedings for which appropriate reserves have been established
to
the extent required by and in accordance with GAAP, or for property taxes on
property that the Borrower or one of its Subsidiaries has determined to abandon
if the sole recourse for such tax, assessment, charge or claim is to such
property;
(b) Liens
in respect of property or assets of the Borrower or any of the Subsidiaries
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other
similar Liens arising in the ordinary course of business, in each case so long
as such Liens arise in the ordinary course of business and do not individually
or in the aggregate have a Material Adverse Effect;
(c) Liens
arising from judgments or decrees in circumstances not constituting an Event
of
Default under
Section 11.11
;
(d) Liens
incurred or deposits made in connection with workers’ compensation, unemployment
insurance and other types of social security, or to secure the performance
of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business or otherwise
constituting Investments permitted by
Section 10.5
;
(e) ground
leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located;
(f) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the
business of the Borrower and its Subsidiaries, taken as a whole;
(g) any
interest or title of a lessor or secured by a lessor’s interest under any lease
permitted by this Agreement;
(h) Liens
in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(i) Liens
on goods the purchase price of which is financed by a documentary letter of
credit issued for the account of the Borrower or any of its Subsidiaries,
provided
that such Lien secures only the obligations of the Borrower or
such Subsidiaries in respect of such letter of credit to the extent permitted
under
Section 10.1
;
(j) leases,
licenses, subleases or sublicenses granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries, taken
as a whole;
(k) Liens
arising from precautionary Uniform Commercial Code financing statement or
similar filings made in respect of operating leases entered into by the Borrower
or any of its Subsidiaries;
(l) Liens
created in the ordinary course of business in favor of banks and other financial
institutions over credit balances of any bank accounts of the Borrower and
the
Restricted Subsidiaries held at such banks or financial institutions, as the
case may be, to facilitate the operation of cash pooling and/or interest set-off
arrangements in respect of such bank accounts in the ordinary course of
business;
(m) Liens
on accounts receivable and related assets incurred in connection with a
Permitted Receivables Financing; and
(n) any
zoning or similar law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any real property that does not
materially interfere with the ordinary conduct of the business of the Borrower
and its Subsidiaries, taken as a whole.
“
Permitted
Receivables
Financing
” shall mean any customary accounts receivable financing
facility (including customary back-to-back intercompany arrangements in respect
thereof) to the extent that (a) the maturity date is no earlier than the
maturity date applicable to the ABL Facility; (b) any collateral securing the
obligations of the obligors thereunder shall be pledged to the Secured Parties
on a second priority basis to secure the Obligations pursuant to intercreditor
arrangement reasonably acceptable to the Administrative Agent; (c) the remaining
terms applicable to such financing facility must be, when taken as a whole,
at
least as favorable to the Lenders as the terms applicable to the ABL Facility
and (d) the
proceeds
of all Indebtedness incurred under such facility must be applied to the
prepayment of Term Loans pursuant to
Section 5.2
.
“Permitted
Sale
Leaseback”
shall mean any Existing DC Sale Leaseback and any Sale
Leaseback consummated by the Borrower or any of the Restricted Subsidiaries
after the Closing Date,
provided
that any such Sale Leaseback not between
(a) a Credit Party and another Credit Party or (b) a Restricted Subsidiary
that
is not a Credit Party and another Restricted Subsidiary that is not a Credit
Party is consummated for fair value as determined at the time of consummation
in
good faith by (i) the Borrower or such Restricted Subsidiary and (ii) in the
case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate
proceeds of which exceed $35,000,000, the board of directors of the Borrower
or
such Restricted Subsidiary (which such determination may take into account
any
retained interest or other Investment of the Borrower or such Restricted
Subsidiary in connection with, and any other material economic terms of, such
Sale Leaseback).
“
Person
”
shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any
Governmental Authority.
“
PIK
Interest Amount
” shall mean the aggregate principal amount of all
increases in outstanding principal amount of Senior Subordinated Notes and
issuances of PIK Notes (as defined in the Senior Subordinated Notes Indenture)
in connection with an election by the Borrower to pay interest on the Senior
Subordinated Notes in kind.
“
Plan
”
shall mean any multiemployer or single-employer plan, as defined in Section
4001
of ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding six plan years maintained or contributed to by (or to which there
is
or was an obligation to contribute or to make payments to) the Borrower or
an
ERISA Affiliate.
“
Platform
”
shall have the meaning provided in
Section 9.1
.
“
Pledge
Agreement
” shall mean (a) the Pledge Agreement, entered into by
the Credit Parties party thereto and the Collateral Agent for the benefit of
the
Secured Parties, substantially in the form of
Exhibit E
, on the
Closing Date, and (b) any other pledge agreement with respect to any or all
of the Obligations delivered pursuant to
Section 9.12
, in each case, as
the same may be amended, supplemented or otherwise modified from time to
time.
“
Post-Acquisition
Period
” shall mean, with respect to any Permitted Acquisition, the
period beginning on the date such Permitted Acquisition is consummated and
ending on the last day of the sixth full consecutive fiscal quarter immediately
following the date on which such Permitted Acquisition is
consummated.
“
Preferred
Stock
” shall mean any Stock or Stock Equivalents with preferential
rights of payment of dividends or upon liquidation, dissolution or winding
up.
“
Prepayment
Event
” shall mean any Asset Sale Prepayment Event, Debt Incurrence
Prepayment Event, Casualty Event or any Permitted Sale Leaseback (other than
the
Existing DC Sale Leasebacks).
“
Prime
Rate
” shall mean the “prime rate” referred to in the definition of
ABR.
“
Pro
Forma Adjustment
” shall mean, for any Test Period that includes all or
any part of a fiscal quarter included in any Post-Acquisition Period, with
respect to the Acquired EBITDA of the applicable Acquired Entity or Business
or
Converted Restricted Subsidiary or the Consolidated EBITDA of the Borrower,
the
pro forma increase or decrease in such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, projected by the Borrower in good faith as a result
of (a) actions taken during such Post-Acquisition Period for the purposes
of realizing reasonably identifiable and factually supportable cost savings
or
(b) any additional costs incurred during such Post-Acquisition Period, in
each case in connection with the combination of the operations of such Acquired
Entity or Business or Converted Restricted Subsidiary with the operations of
the
Borrower and the Restricted Subsidiaries;
provided
that (i) at the
election of the Borrower, such Pro Forma Adjustment shall not be required to
be
determined for any Acquired Entity or Business or Converted Restricted
Subsidiary to the extent the aggregate consideration paid in connection with
such acquisition was less than $5,000,000 and (ii) so long as such actions
are taken during such Post-Acquisition Period or such costs are incurred during
such Post-Acquisition Period, as applicable, it may be assumed, for purposes
of
projecting such pro forma increase or decrease to such Acquired EBITDA or
such Consolidated EBITDA, as the case may be, that the applicable amount of
such
cost savings will be realizable during the entirety of such Test Period, or
the
applicable amount of such additional costs, as applicable, will be incurred
during the entirety of such Test Period;
provided
further
that any
such pro forma increase or decrease to such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, shall be without duplication for cost
savings or additional costs already included in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, for such Test Period.
“
Pro
Forma Adjustment Certificate
” shall mean any certificate of an
Authorized Officer of the Borrower delivered pursuant to
Section 9.1(h)
or
Section 9.1(d)
.
“
Pro
Forma Balance Sheet
” shall have the meaning provided in
Section
9.1
.
“
Pro
Forma Basis
”, “
Pro Forma Compliance
” and “
Pro
Forma Effect
” shall mean, with respect to compliance with any test or
covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment
shall have been made and (B) all Specified Transactions and the following
transactions in connection therewith shall be deemed to have occurred as of
the
first day of the applicable period of measurement in such test or
covenant: (a) income statement items (whether positive or negative)
attributable to the property or Person subject to such Specified Transaction,
(i) in the case of a sale, transfer or other disposition of all or
substantially all Capital Stock in any Subsidiary of the Borrower or any
division, product line, or facility used for operations of the Borrower or
any
of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted
Acquisition or Investment described in the definition of “Specified
Transaction”, shall be included, (b) any retirement of Indebtedness, and (c) any
incurrence or assumption of Indebtedness by the Borrower or any of the
Restricted Subsidiaries in connection therewith (it being agreed that if such
Indebtedness has a floating or formula rate, such Indebtedness shall have an
implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate that is or would be in effect with
respect to such Indebtedness as at the relevant date of determination);
provided
that, without limiting the
application
of the Pro Forma Adjustment pursuant to (A) above (but without duplication
thereof), the foregoing pro forma adjustments may be applied to any such test
or
covenant solely to the extent that such adjustments are consistent with the
definition of Consolidated EBITDA and give effect to events (including operating
expense reductions) that are (i) (x) directly attributable to such transaction,
(y) expected to have a continuing impact on the Borrower and the Restricted
Subsidiaries and (z) factually supportable or (ii) otherwise consistent
with the definition of Pro Forma Adjustment.
“
Pro
Forma Entity
” shall have the meaning provided in the definition of the
term “Acquired EBITDA.”
“
Pro
Forma Financial Statements
” shall have the meaning provided in
Section
9.1
.
“
Projections
”
shall have the meaning provided in
Section 9.1(h)
.
“
Project
Alpha
” shall mean the decision by the Borrower to eliminate the
historical packaway strategy and to close approximately 400 underperforming
stores.
“
Qualifying
IPO
” shall mean the issuance by the Borrower or any direct
or indirect parent of the Borrower of its common Stock in an underwritten
primary public offering (other than a public offering pursuant to a registration
statement on Form S-8) pursuant to an effective registration statement
filed with the SEC in accordance with the Securities Act (whether alone or
in
connection with a secondary public offering).
“
Real
Estate
” shall have the meaning provided in Section 9.1(e).
“
Receivables
Subsidiary
” shall mean any Subsidiary established in connection with a
Permitted Receivables Financing that is not permitted by the terms of such
Permitted Receivables Financing to guarantee the Obligations.
“
Refinanced
Term Loans
” shall have the meaning provided in Section
13.1.
“
Register
”
shall have the meaning provided in
Section 13.6(b)(iv)
.
“
Registration
Rights Agreement
” means the Registration Rights Agreement related to
the Senior Notes and the Senior Subordinated Notes, dated as of the Closing
Date, among the Borrower, the other Credit Parties party thereto and the
financial institutions party thereto, as such agreement may be amended, modified
or supplemented from time to time and, with respect to any additional notes
issued pursuant to the Indentures, one or more registration rights agreements
between the Borrower and the other parties thereto, as such agreement(s) may
be
amended, modified or supplemented from time to time, relating to rights given
by
the Borrower to the purchasers of such additional notes to register such
additional notes under the Securities Act.
“
Regulation D
”
shall mean Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve
requirements.
“
Regulation T
”
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Regulation U
”
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Regulation X
”
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Reinvestment
Period
” shall mean 15 months following the date of receipt of Net Cash
Proceeds of an Asset Sale Prepayment Event or Casualty Event.
“
Rejection
Notice
” shall have the meaning provided in
Section
5.2(h)
.
“
Related
Parties
” shall mean, with respect to any specified Person, such
Person’s Affiliates and the directors, officers, employees, agents, trustees and
advisors of such Person and any Person that possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies of
such
Person, whether through the ability to exercise voting power, by contract or
otherwise.
“
Repayment
Amount
” shall mean a Tranche B Term Loan Repayment Amount or a New Term
Loan Repayment Amount with respect to any Series, as applicable.
“
Replacement
Term Loans
” shall have the meaning provided in Section
13.1.
“
Reportable
Event
” shall mean an event described in Section 4043 of ERISA and the
regulations thereunder, other than any event as to which the thirty day notice
period has been waived.
“
Required
Lenders
” shall mean, at any date, Non-Defaulting Lenders having or
holding a majority of (a) the Adjusted Total Term Loan Commitment at such date
and (b) the outstanding principal amount of the Term Loans (excluding Term
Loans held by Defaulting Lenders) at such date.
“
Required
Tranche B-1 Term Loan Lenders
” shall mean, at any date, Non-Defaulting
Lenders having or holding a majority of the sum of (a) the Adjusted Total
Tranche B-1 Term Loan Commitment at such date and (b) the aggregate
outstanding principal amount of the Tranche B-1 Term Loans (excluding
Tranche B-1 Term Loans held by Defaulting Lenders) at such
date.
“
Required
Tranche B-2 Term Loan Lenders
” shall mean, at any date, Non-Defaulting
Lenders having or holding a majority of the sum of (a) the Adjusted Total
Tranche B-2 Term Loan Commitment at such date and (b) the aggregate
outstanding principal amount of the Tranche B-2 Term Loans (excluding
Tranche B-2 Term Loans held by Defaulting Lenders) at such
date.
“
Requirement
of Law
” shall mean, as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person,
and
any
law,
treaty, rule or regulation or determination of an arbitrator or a court or
other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or assets or to which such Person or any of its property
or assets is subject.
“
Restricted
Foreign Subsidiary
” shall mean a Foreign Subsidiary that is a
Restricted Subsidiary.
“
Restricted
Subsidiary
” shall mean any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
“
Retained
Declined Proceeds
” shall have the meaning provided in
Section
5.2(f)
.
“
S&P
”
shall mean Standard & Poor’s Ratings Services or any successor by
merger or consolidation to its business.
“
Sale
Leaseback
” shall mean any transaction or series of related transactions
pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells,
transfers or otherwise disposes of any property, real or personal, whether
now
owned or hereafter acquired, and (b) as part of such transaction, thereafter
rents or leases such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold,
transferred or disposed.
“
Scheduled
Dispositions
” shall have the meaning provided in
Section
10.4(j
).
“
SEC
”
shall mean the Securities and Exchange Commission or any successor
thereto.
“
Section
9.1 Financials
” shall mean the financial statements delivered, or
required to be delivered, pursuant to
Section 9.1(a)
or
(b)
together with the accompanying officer’s certificate delivered, or required to
be delivered, pursuant to
Section 9.1(d)
.
“
Secured
Hedge Agreement
” shall mean any Hedge Agreement that is entered into by
and between the Borrower or any of its Restricted Subsidiaries and any Hedge
Bank.
“
Secured
Parties
” shall mean the Administrative Agent, the Collateral Agent,
each Lender, each Hedge Bank that is party to any Secured Hedge Agreement and
each sub-agent pursuant to
Section 12
appointed by the Administrative
Agent with respect to matters relating to the Credit Facilities or by the
Collateral Agent with respect to matters relating to any Security
Document.
“
Security
Agreement
” shall mean the Security Agreement entered into by the
Borrower, the other grantors party thereto and the Collateral Agent for the
benefit of the Secured Parties, substantially in the form of
Exhibit F
,
as the same may be amended, supplemented or otherwise modified from time to
time.
“
Security
Documents
” shall mean, collectively, (a) the Guarantee, (b) the
Pledge Agreement, (c) the Security Agreement, (d) the Mortgages,
(e) the Intercreditor Agreement and
(f)
each
other security agreement or other instrument or document executed and delivered
pursuant to
Section 9.11
,
9.12
or
9.14
or pursuant to any
other such Security Documents or otherwise to secure or perfect the security
interest in any or all of the Obligations.
“
Securitization
”
shall mean a public or private offering by a Lender or any of its Affiliates
or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the Loans
and the Lender’s rights under the Credit Documents.
“
Senior
Notes
” shall mean (a) the Senior Notes defined in the preamble and (b)
any modification, replacement, refinancing, refunding, renewal or extension
thereof that constitutes Permitted Additional Debt.
“
Senior
Notes Indenture
” shall mean the Indenture dated as of the Closing Date,
among the Borrower, the guarantors party thereto and Wells Fargo Bank, N.A.,
as
trustee, pursuant to which the Senior Notes are issued, as the same may be
amended, supplemented or otherwise modified from time to time in accordance
therewith.
“
Senior
Notes Offering
” shall have the meaning set forth in the
preamble.
“
Senior
Secured Incurrence Test
” means, as of any date, the Consolidated Senior
Secured Debt to Consolidated EBITDA Ratio shall be no greater than 4.25 to
1.00.
“
Senior
Subordinated Notes
” shall mean (a) the Senior Subordinated Notes
defined in the preamble and (b) any modification, replacement, refinancing,
refunding, renewal or extension thereof that constitutes Permitted Additional
Debt.
“
Senior
Subordinated Notes Indenture
” means the Indenture dated as of the
Closing Date, among the Borrower, the guarantors party thereto and Wells Fargo
Bank, N.A., as trustee, pursuant to which the Senior Subordinated Notes are
issued, as the same may be amended, supplemented or otherwise modified from
time
to time in accordance therewith.
“
Senior
Subordinated Notes Offering
” shall have the meaning set forth in the
preamble.
“
Series
”
shall have the meaning provided in
Section 2.14
.
“
Sold
Entity or Business
” shall have the meaning provided in the definition
of the term “Consolidated EBITDA”.
“
Solvent
”
shall mean, with respect to any Person, that as of the Closing Date, (a) (i)
the
sum of such Person’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Person’s present assets; (ii) such Person’s
capital is not unreasonably small in relation to its business as contemplated
on
the Closing Date; and (iii) such Person has not incurred and does not intend
to
incur, or believe that it will incur, debts including current obligations beyond
its ability to pay such debts as they become due (whether at maturity or
otherwise); and (b) such Person is “solvent” within the meaning given that term
and similar terms under applicable laws relating to fraudulent transfers and
conveyances. For purposes of
this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing
at
such time, represents the amount that can reasonably be expected to become
an
actual or matured liability (irrespective of whether such contingent liabilities
meet the criteria for accrual under Statement of Financial Accounting Standard
No. 5).
“
Specified
Subsidiary
” shall mean, at any date of determination (a) any Material
Subsidiary, (b) any Unrestricted Subsidiary (i) whose total assets at the
last day of the Test Period ending on the last day of the most recent fiscal
period for which Section 9.1 Financials have been delivered were equal to or
greater than 10% of the Consolidated Total Assets of the Borrower and the
Subsidiaries at such date, or (ii) whose revenues during such Test Period
were equal to or greater than 10% of the consolidated revenues of the Borrower
and the Subsidiaries for such period, in each case determined in accordance
with
GAAP, and (c) each other Unrestricted Subsidiary that is the subject of an
Event of Default under
Section 11.5
and that, when such Subsidiary’s
total assets or revenues are aggregated with the total assets or revenues,
as
applicable, of each other Subsidiary that is the subject of an Event of Default
under
Section 11.5
, would constitute a Specified Subsidiary under
clause (b)
above.
“
Specified
Transaction
” shall mean, with respect to any period, any Investment,
any Disposition of assets, incurrence or repayment of Indebtedness, dividend,
Subsidiary designation, New Term Loan or other event that by the terms of this
Agreement requires “Pro Forma Compliance” with a test or covenant hereunder or
requires such test or covenant to be calculated on a “Pro Forma
Basis.”
“
Sponsor
”
shall mean any of KKR, GS Capital Partners VI Fund, L.P. and funds managed
by
Citigroup Private Equity LP, and each of their respective Affiliates but
excluding portfolio companies of any of the foregoing.
“
Stock
”
shall mean shares of capital stock or shares in the capital, as the case may
be
(whether denominated as common stock or preferred stock or ordinary shares
or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
“
Stock
Equivalents
” shall mean all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe
for
any Stock, whether or not presently convertible, exchangeable or
exercisable.
“
Subsidiary
”
of any Person shall mean and include (a) any corporation more than 50% of whose
Stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time Stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (b) any limited liability company, partnership, association,
joint venture or other entity of which such Person directly or indirectly
through Subsidiaries has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the Borrower.
“
Successor
Borrower
” shall have the meaning provided in
Section
10.3(a)
.
“
Syndication
Agent
” shall mean Goldman Sachs Credit Partners L.P., together with its
affiliates, as syndication agent for the Lenders under this Agreement and the
other Credit Documents.
“
Taxes
”
shall mean any and all present or future taxes, duties, levies, imposts,
assessments, deductions, withholdings or other similar charges imposed by any
Governmental Authority whether computed on a separate, consolidated, unitary,
combined or other basis and any interest, fines, penalties or additions to
tax
with respect to the foregoing.
“
Term
Loan Commitment
” shall mean, with respect to each Lender, such Lender’s
Tranche B Term Loan Commitment and, if applicable, New Term Loan Commitment
with
respect to any Series.
“
Term
Loans
” shall mean the Tranche B Term Loans and any New Term Loans,
collectively.
“
Test
Period
” shall mean, for any determination under this Agreement, the
four consecutive fiscal quarters of the Borrower then last ended.
“
Total
Assets
” shall mean, as of any date of determination with respect to any
Person, the amount that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a balance sheet of such
Person at such date.
“
Total
Term Loan Commitment
” shall mean the sum of the Tranche B Term Loan
Commitments and the New Term Loan Commitments, if applicable, of all the
Lenders.
“
Total
Tranche B-1 Term Loan Commitment
” shall mean the sum of the
Tranche B-1 Term Loan Commitments of all Lenders.
“
Total
Tranche B-2 Term Loan Commitment
” shall mean the sum of the
Tranche B-2 Term Loan Commitments of all Lenders.
“
Tranche
B-1 Repayment Amount
” shall have the meaning provided in
Section 2.5(b)
.
“
Tranche
B-2 Repayment Amount
” shall have the meaning provided in
Section 2.5(b)
.
“
Tranche
B-1 Repayment Date
” shall have the meaning provided in
Section
2.5(b)
.
“
Tranche
B-2 Repayment Date
” shall have the meaning provided in
Section
2.5(b)
.
“
Tranche
B
Term Loan
” shall mean any Tranche B-1 Term Loan and
any Tranche B-2 Term Loan.
“
Tranche
B-1
Term Loan
” shall have the meaning provided in
Section 2.1
.
“
Tranche
B-2
Term Loan
” shall have the meaning provided in
Section 2.1
.
“
Tranche
B
Term Loan Commitment
” shall mean the Tranche B-1 Term
Loan Commitment and the Tranche B-2 Term Loan Commitment.
“
Tranche
B
-
1
Term Loan Commitment
” shall mean,
(a) in the case of each Tranche B-1 Term Loan Lender that is a Lender on
the date hereof, the amount set forth opposite such Lender’s name on
Schedule 1.1(c)
as such Lender’s “Tranche B-1 Term Loan Commitment”
and (b) in the case of any Lender that becomes a Lender after the date
hereof, the amount specified as such Lender’s “Tranche B-1 Term Loan Commitment”
in the Assignment and Acceptance pursuant to which such Lender assumed a portion
of the Total Tranche B-1 Term Loan Commitment, in each case as the same may
be
changed from time to time pursuant to the terms hereof. The aggregate
amount of the Tranche B-1 Term Loan Commitments as of the Closing Date is
$1,700,000,000.
“
Tranche
B-2
Term Loan Commitment
” shall mean, (a) in the
case of each Tranche B-2 Term Loan Lender that is a Lender on the date hereof,
the amount set forth opposite such Lender’s name on
Schedule 1.1(c)
as such Lender’s “Tranche B-2 Term Loan Commitment” and (b) in the case of
any Lender that becomes a Lender after the date hereof, the amount specified
as
such Lender’s “Tranche B-2 Term Loan Commitment” in the Assignment and
Acceptance pursuant to which such Lender assumed a portion of the Total Tranche
B-2 Term Loan Commitment, in each case as the same may be changed from time
to
time pursuant to the terms hereof. The aggregate amount of the
Tranche B-2 Term Loan Commitments as of the Closing Date is
$600,000,000.
“
Tranche
B Term Loan Lender
” shall mean any Tranche B-1 Term Loan Lender and any
Tranche B-2 Term Loan Lender.
“
Tranche
B-1 Term Loan Lender
” shall mean a Lender with a Tranche B-1 Term Loan
Commitment or an outstanding Tranche B-1 Term Loan.
“
Tranche
B-2 Term Loan Lender
” shall mean a Lender with a Tranche B-2 Term Loan
Commitment or an outstanding Tranche B-2 Term Loan.
“
Tranche
B Term Loan Maturity Date
” shall mean July 6, 2014, or, if such
date is not a Business Day, the first Business Day thereafter.
“
Transaction
Expenses
” shall mean any fees or expenses incurred or paid by the
Borrower or any of its Subsidiaries in connection with the Transactions, this
Agreement and the other Credit Documents and the transactions contemplated
hereby and thereby.
“
Transactions
”
shall mean, collectively, the transactions contemplated by this Agreement,
the
ABL Facility, the Senior Notes Indenture, the Senior Subordinated Notes
Indenture, the Merger and the Equity Investments and any repayment, repurchase,
prepayment or defeasance of Indebtedness of the Borrower or any of its
Subsidiaries in connection therewith.
“
Transferee
”
shall have the meaning provided in
Section 13.6(e)
.
“
Type
”
shall mean, as to any Term Loan, its nature as an ABR Loan or a LIBOR
Loan.
“
Unfunded
Current Liability
” of any Plan shall mean the amount, if any, by which
the Accumulated Benefit Obligation (as defined under Statement of Financial
Accounting Standards No. 87 (“
SFAS 87
”)) under the Plan as of
the close of its most recent plan year, determined in accordance with SFAS
87 as
in effect on the date hereof, exceeds the fair market value of the assets
allocable thereto.
“
Unrestricted
Subsidiary
” shall mean (a) any Subsidiary of the Borrower that is
formed or acquired after the Closing Date,
provided
that at such time (or
promptly thereafter) the Borrower designates such Subsidiary an Unrestricted
Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary subsequently designated as an Unrestricted Subsidiary
by
the Borrower in a written notice to the Administrative Agent,
provided
that in the case of
(a)
and
(b)
, (x) such designation shall be
deemed to be an Investment (or reduction in an outstanding Investment, in the
case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary)
on the date of such designation in an amount equal to the net book value of
the
Borrower’s investment therein and such designation shall be permitted only to
the extent permitted under
Section 10.5
on the date of such designation
and (y) no Default or Event of Default would result from such designation after
giving Pro Forma Effect thereto and (c) each Subsidiary of an Unrestricted
Subsidiary. No Subsidiary may be designated as an Unrestricted
Subsidiary if, after such designation, it would be a “Restricted Subsidiary” for
the purpose of the ABL Facilities, the Senior Notes or the Senior Subordinated
Notes. The Borrower may, by written notice to the Administrative
Agent, re-designate any Unrestricted Subsidiary as a Restricted Subsidiary,
and
thereafter, such Subsidiary shall no longer constitute an Unrestricted
Subsidiary, but only if (x) to the extent such Subsidiary has outstanding
Indebtedness on the date of such designation, immediately after giving effect
to
such designation, the Borrower shall be in compliance, on a Pro Forma Basis
after giving effect to the incurrence of such Indebtedness, with the Senior
Secured Incurrence Test (and, as a condition precedent to the effectiveness
of
any such designation, the Borrower shall deliver to the Administrative Agent
a
certificate setting forth in reasonable detail the calculations demonstrating
satisfaction of such test) and (y) no Default or Event of Default would result
from such re-designation. On or promptly after the date of its
formation, acquisition, designation or re-designation, as applicable, each
Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a Foreign
Subsidiary) shall have entered into a tax sharing agreement containing terms
that, in the reasonable judgment of the Administrative Agent, provide for an
appropriate allocation of tax liabilities and benefits.
“
U.S.
Lender
” shall have the meaning provided in
Section
5.4(j)
.
“
Voting
Stock
” shall mean, with respect to any Person, such Person’s Stock or
Stock Equivalents having the right to vote for the election of directors of
such
Person under ordinary circumstances.
.
1.2.
Other
Interpretive Provisions
With
reference to this Agreement and each other Credit Document, unless otherwise
specified herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The
words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import
when used in any Credit Document shall refer to such Credit Document
as a whole and not to any particular provision thereof.
(c) Article,
Section, Exhibit and Schedule references are to the Credit Document in which
such reference appears.
(d) The
term “including” is by way of example and not limitation.
(e) The
term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including”.
(g) Section
headings herein and in the other Credit Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement
or
any other Credit Document.
1.3.
Accounting
Terms
.
(a) All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP.
(b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance with
any
test or covenant contained in this Agreement with respect to any period during
which any Specified Transaction occurs, the Consolidated Total Debt to
Consolidated EBITDA Ratio, the Consolidated EBITDA to Consolidated Interest
Expense Ratio and the Consolidated Senior Secured Debt to Consolidated EBITDA
Ratio shall each be calculated with respect to such period and such Specified
Transaction on a Pro Forma Basis.
1.4.
Rounding
. Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement (or required to be satisfied in order for a specific action to be
permitted under this Agreement) shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than
the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.5.
References
to Agreements, Laws, Etc
.
Unless
otherwise expressly provided herein, (a) references to organizational documents,
agreements (including the Credit Documents) and other Contractual Requirements
shall be deemed to include all subsequent
amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, amendment and restatements, extensions, supplements and other
modifications are permitted by any Credit Document; and (b) references to
any Requirement of Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such
Requirement of Law.
1.6.
[Reserved]
.
SECTION
2.
Amount and
Terms of Credit
2.1.
Commitments
.
(a) (i) Subject
to and upon the terms and conditions herein set forth, each Tranche B-1 Term
Loan Lender severally, but not jointly, agrees to make a loan or loans (each
a
“
Tranche B-1 Term Loan
”) on the Closing Date to the Borrower in
Dollars, which Tranche B-1 Term Loans shall not exceed for any such Lender
the
Tranche B-1 Term Loan Commitment of such Lender and in the aggregate shall
not
exceed $1,700,000,000. Such Tranche B-1 Term Loans (A) shall be
made on the Closing Date, (B) may at the option of the Borrower be incurred
and maintained as, and/or converted into, ABR Loans or LIBOR Loans,
provided
that all Tranche B-1 Term Loans made by each of the Tranche B-1
Term Loan Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Tranche B-1 Term Loans of
the
same Type, (C) may be repaid or prepaid in accordance with the provisions
hereof, but once repaid or prepaid, may not be reborrowed, (D) shall not exceed
for any such Lender the Tranche B-1 Term Loan Commitment of such Lender and
(E) shall not exceed in the aggregate the Total Tranche B-1 Term Loan
Commitments. On the Tranche B Term Loan Maturity Date, all then
unpaid Tranche B-1 Term Loans shall be repaid in full in Dollars.
(ii) Subject
to and upon
the terms and conditions herein set forth, each Tranche B-2 Term Loan Lender
severally agrees to make a loan or loans (each a “
Tranche B-2 Term
Loan
”) on the Closing Date to the Borrower in Dollars, which Tranche
B-2 Term Loans shall not exceed for any such Lender the Tranche B-2 Term Loan
Commitment of such Lender and in the aggregate shall not exceed
$600,000,000. Such Tranche B-2 Term Loans (i) shall be made on
the Closing Date, (ii) may at the option of the Borrower be incurred and
maintained as, and/or converted into, ABR Loans or LIBOR Loans,
provided
that all Tranche B-2 Term Loans made by each of the Tranche B-2 Term Loan
Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Tranche B-2 Term Loans of the same Type,
(iii) may be repaid or prepaid in accordance with the provisions hereof,
but once repaid or prepaid, may not be reborrowed, (iv) shall not exceed for
any
such Lender the Tranche B-2 Term Loan Commitment of such Lender and
(v) shall not exceed in the aggregate the Total Tranche B-2 Term Loan
Commitments. On the Tranche B Term Loan Maturity Date, all then
unpaid Tranche B-2 Term Loans shall be repaid in full in Dollars.
(b) Each
Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan,
provided
that
(A) any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan and (B) in exercising such option, such Lender
shall use its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the Lender shall not require it to
take, or refrain from taking, actions that it determines would result in
increased costs for which it will not be compensated hereunder or that it
determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement,
the
provisions of
Section 2.10
shall apply).
2.2.
Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
.
The
aggregate principal amount of each Borrowing of Term Loans shall be in a minimum
amount of at least the Minimum Borrowing Amount for such Type of Loans and
in a
multiple of $1,000,000 in excess thereof. More than one Borrowing may
be incurred on the Closing Date,
provided
that at no time shall there be
outstanding more than 20 Borrowings of LIBOR Loans under this
Agreement.
2.3.
Notice
of Borrowing
.
(a) The
applicable Borrower shall give the Administrative Agent at the Administrative
Agent’s Office (i) prior to 12:00 Noon (New York City time) at least three
Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) of the Borrowing of Term Loans if such Term Loans are to be initially
LIBOR Loans (or prior to 9:00 a.m. (New York City time) two Business Days’ prior
written notice in the case of a Borrowing of Term Loans to be made on the
Closing Date initially as LIBOR Loans) and (ii) written notice (or
telephonic notice promptly confirmed in writing) prior to 12:00 Noon (New
York City time) on the date of the Borrowing of Term Loans if such Term Loans
are to be ABR Loans. Such notice (a “
Notice of
Borrowing
”) shall specify (i) the aggregate principal amount of
the Term Loans to be made, (ii) the date of the Borrowing (which shall be
the Closing Date) and (iii) whether the Term Loans shall consist of ABR
Term Loans and/or LIBOR Loans and, if the Term Loans are to include LIBOR Loans,
the Interest Period to be initially applicable thereto (it being agreed that
the
initial Interest Period applicable to the Term Loans made on the Closing Date
shall commence on such date and shall end on July 31, 2007). The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of the proposed Borrowing
of
Term Loans, of such Lender’s proportionate share thereof and of the other
matters covered by the related Notice of Borrowing.
(b) Without
in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of
such telephonic notice believed by the Administrative Agent in good faith to
be
from an Authorized Officer of the Borrower.
2.4.
Disbursement
of Funds
.
(a) No
later than 2:00 p.m. (New York City time) on the date specified in each Notice
of Borrowing, each Lender will make available its
pro rata
portion, if
any, of each Borrowing requested to be made on such date in the manner provided
below;
provided
that, on the Closing Date, such funds may be made
available at such earlier time as may be agreed among the Lenders, the Borrower
and the Administrative Agent for the purpose of consummating the
Transactions.
(b) Each
Lender shall make available all amounts it is to fund to the applicable Borrower
under any Borrowing for its applicable Commitments, and in immediately available
funds to the Administrative Agent at the Administrative Agent’s Office in
Dollars and the Administrative Agent will make available to the Borrower, by
depositing to an account designated by the Borrower to the Administrative Agent
the aggregate of the amounts so made available in Dollars. Unless the
Administrative Agent shall have been notified by any Lender
prior
to
the date of any such Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption,
may
(in its sole discretion and without any obligation to do so) make available
to
the Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available such amount to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount
from
such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately
pay
such corresponding amount to the Administrative Agent in Dollars. The
Administrative Agent shall also be entitled to recover from such Lender or
the
Borrower interest on such corresponding amount in respect of each day from
the
date such corresponding amount was made available by the Administrative Agent
to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate
per annum
equal to (i) if paid by such
Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable
rate of interest or fees, calculated in accordance with
Section 2.8
, for
the respective Loans.
(c) Nothing
in this
Section 2.4
shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights
that
the Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5.
Repayment
of Loans; Evidence of Debt.
(a) The
Borrower shall repay to the Administrative Agent, in Dollars, for the benefit
of
the Tranche B-1 Term Loan Lenders, on the Tranche B Term Loan Maturity Date,
the
then outstanding Tranche B-1 Term Loans. The Borrower shall
repay to the Administrative Agent, in Dollars, for the benefit of the Tranche
B-2 Term Loan Lenders, on the Tranche B Term Loan Maturity Date, the then
outstanding Tranche B-2 Term Loans.
(b) In
addition to the provision set forth in clause (a) above, (i) the Borrower shall
repay to the Administrative Agent, in Dollars, for the benefit of the Tranche
B-1 Term Loan Lenders, on the last Business Day of each March, June, September
and December, commencing with the first such date following the second
anniversary of the Closing Date (each, a “
Tranche B-1 Repayment
Date
”), an aggregate principal amount equal to 0.25% of the aggregate
principal amount of all Tranche B-1 Term Loans outstanding on the Closing Date
(each, a “
Tranche B-1 Repayment Amount
”) (which payments shall
be reduced as a result of the application of prepayments to Tranche B-1 Term
Loans in accordance with the order of priority set forth in
Section 5.2(b)
) and (ii) the Borrower shall repay to the
Administrative Agent, in Dollars, for the benefit of the Tranche B-2 Term Loan
Lenders, on the last Business Day of each March, June, September and December,
commencing with the first such date following the second anniversary of the
Closing Date (each, a “
Tranche B-2 Repayment Date
”), an
aggregate principal amount equal to 0.25% of the aggregate principal amount
of
all Tranche B-2 Term Loans outstanding on the Closing Date (each, a
“
Tranche B-2 Repayment Amount
”) (which
payments
shall be reduced as a result of the application of prepayments to Tranche B-2
Term Loans in accordance with the order of priority set forth in
Section 5.2(b)
).
(c) In
the event that any New Term Loans are made, such New Term Loans shall, subject
to
Section 2.14(d)
, be repaid by the Borrower in the amounts (each, a
“
New Term Loan Repayment Amount
”) and on the dates (each a
“
New Term Loan Repayment Date
”) set forth in the applicable
Joinder Agreement.
(d) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to the appropriate lending
office of such Lender resulting from each Loan made by such lending office
of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Lender from time to time under
this Agreement.
(e) The
Administrative Agent shall maintain the Register pursuant to
Section 13.6(b)
, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount of each Loan
made hereunder, whether such Loan is a Tranche B-1 Term Loan, a Tranche B-2
Term
Loan or a New Term Loan, as applicable, the Type of each Loan made, the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant
to
clauses (d)
and
(e)
of this
Section 2.5
shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and
amounts of the obligations of the Borrower therein recorded;
provided
,
however
, that the failure of any Lender or the Administrative Agent
to
maintain such account, such Register or such subaccount, as applicable, or
any
error therein, shall not in any manner affect the obligation of the Borrower
to
repay (with applicable interest) the Loans made to the Borrower by such Lender
in accordance with the terms of this Agreement.
2.6.
Conversions
and Continuations
.
(a) Subject
to the penultimate sentence of this
clause (a)
, (x) the Borrower shall
have the option on any Business Day to convert all or a portion equal to at
least $5,000,000 of the outstanding principal amount of Term Loans of one Type
into a Borrowing or Borrowings of another Type and (y) each Borrower shall
have
the option on any Business Day to continue the outstanding principal amount
of
any LIBOR Loans as LIBOR Loans for an additional Interest Period,
provided
that (i) no partial conversion of LIBOR Loans shall reduce the
outstanding principal amount of LIBOR Loans made pursuant to a single Borrowing
to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted
into LIBOR Loans if a Default or Event of Default is in existence on the date
of
the conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion,
(iii) LIBOR Loans may not be continued as LIBOR Loans for an additional
Interest Period if a Default or Event of Default is in existence on the date
of
the proposed continuation and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuation and (iv) Borrowings resulting from
conversions
pursuant to this
Section 2.6
shall be limited in number as provided in
Section 2.2
. Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the
Administrative Agent’s Office prior to 12:00 Noon (New York City time) at least
(i) three Business Days’, in the case of a continuation of or conversion to
LIBOR Loans or (ii) one Business Day’s in the case of a conversion into ABR
Loans, prior written notice (or telephonic notice promptly confirmed in writing)
(each, a “
Notice of Conversion or Continuation
”) specifying the
Loans to be so converted or continued, the Type of Loans to be converted into
or
continued and, if such Loans are to be converted into or continued as LIBOR
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each applicable Lender notice as promptly as
practicable of any such proposed conversion or continuation affecting any of
its
Loans.
(b) If
any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuation, such LIBOR Loans shall be automatically converted on the last
day
of the current Interest Period into ABR Loans. If upon the expiration
of any Interest Period in respect of LIBOR Loans, the Borrower has failed to
elect a new Interest Period to be applicable thereto as provided in
clause (a)
above, the Borrower shall be deemed to have elected to
convert such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective
as of the expiration date of such current Interest Period.
2.7.
Pro
Rata
Borrowings
. Each
extension of Tranche B-1 Term Loans under this Agreement shall be made by the
Lenders
pro rata
on the basis of their then applicable Tranche B-1 Term
Loan Commitments. Each extension of Tranche B-2 Term Loans under this
Agreement shall be made by the Lenders
pro rata
on the basis of their
then applicable Tranche B-2 Term Loan Commitments. Each extension of
New Term Loans under this Agreement shall be made by the Lenders
pro
rata
on the basis of their then applicable New Term Loan
Commitments. It is understood that (a) no Lender shall be responsible
for any default by any other Lender in its obligation to make Loans hereunder
and that each Lender severally but not jointly shall be obligated to make the
Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its commitments hereunder and (b) failure by a Lender
to
perform any of its obligations under any of the Credit Documents shall not
release any Person from performance of its obligation under any Credit
Document.
2.8.
Interest
.
(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date
of
the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a
rate
per annum
that shall at all times be the Applicable Margin plus
the ABR, in each case, in effect from time to time.
(b) The
unpaid principal amount of each LIBOR Loan shall bear interest from the date
of
the Borrowing thereof until maturity thereof (whether by acceleration or
otherwise) at a rate
per annum
that shall at all times be the
Applicable Margin plus the relevant LIBOR Rate.
(c) If
all or a portion of (i) the principal amount of any Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate
per annum
that is (the “
Default Rate
”) (x)
in the case of overdue principal, the rate that would otherwise be applicable
thereto
plus
2% or (y) in the case of any overdue interest, to the
extent permitted by applicable law, the rate described in
Section 2.8(a)
plus
2% from the date of such non-payment to
the date on which such amount is paid in full (after as well as before
judgment).
(d) Interest
on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in Dollars;
provided
that any Loan that is repaid on the same date on which it is
made shall bear interest for one day. Except as provided below,
interest shall be payable (i) in respect of each ABR Loan, quarterly in arrears
on the last Business Day of each March, June, September and December, (ii)
in
respect of each LIBOR Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months, on
each date occurring at three-month intervals after the first day of such
Interest Period, (iii) in respect of each Loan, (A) on any prepayment, (B)
at maturity (whether by acceleration or otherwise) and (C) after such maturity,
on demand.
(e) All
computations of interest hereunder shall be made in accordance with
Section 5.5
.
(f) The
Administrative Agent, upon determining the interest rate for any Borrowing
of
LIBOR Loans, shall promptly notify the Borrower and the relevant Lenders
thereof. Each such determination shall, absent clearly demonstrable
error, be final and conclusive and binding on all parties hereto.
2.9.
Interest
Periods
. At
the time the Borrower gives a Notice of Borrowing or Notice of Conversion or
Continuation in respect of the making of, or conversion into or continuation
as,
a Borrowing of LIBOR Loans in accordance with
Section 2.6(a)
, the
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of the Interest Period applicable to
such
Borrowing, which Interest Period shall, at the option of the Borrower be a
one,
two, three or six or (if available to all the Lenders making such LIBOR Loans
as
determined by such Lenders in good faith based on prevailing market conditions)
a nine or twelve month period.
Notwithstanding
anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of LIBOR Loans shall commence on
the
date of such Borrowing (including the date of any conversion from a Borrowing
of
ABR Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest Period
expires;
(b) if
any Interest Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period,
such
Interest Period shall end on the last Business Day of the calendar month at
the
end of such Interest Period;
(c) if
any Interest Period would otherwise expire on a day that is not a Business
Day,
such Interest Period shall expire on the next succeeding Business Day,
provided
that if any Interest Period in respect of a LIBOR Loan would
otherwise expire on a day that is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day; and
(d) the
Borrower shall not be entitled to elect any Interest Period in respect of any
LIBOR Loan if such Interest Period would extend beyond the applicable Maturity
Date of such Loan.
2.10.
Increased
Costs, Illegality, Etc
.
(a)
In
the event that (x) in
the case of
clause (i)
below, the Administrative Agent or
(y) in the case of
clauses (ii)
and
(iii)
below, any
Lender shall have reasonably determined (which determination shall, absent
clearly demonstrable error, be final and conclusive and binding upon all parties
hereto):
(i)
on
any date for
determining the LIBOR Rate for any Interest Period that (x) deposits in the
principal amounts and currencies of the Loans comprising such LIBOR Borrowing
are not generally available in the relevant market or (y) by reason of any
changes arising on or after the Closing Date affecting the interbank LIBOR
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of LIBOR Rate;
or
(ii)
at any time, that such Lender shall incur increased costs or reductions in
the
amounts received or receivable hereunder with respect to any LIBOR Loans (other
than any increase or reduction attributable to Taxes) because of (x) any change
since the date hereof in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in
official reserve requirements, and/or (y) other circumstances affecting the
interbank LIBOR market or the position of such Lender in such market;
or
(iii) at
any time, that the making or continuance of any LIBOR Loan has become unlawful
as a result of compliance by such Lender in good faith with any law,
governmental rule, regulation, guideline or order (or would conflict with any
such governmental rule, regulation, guideline or order not having the force
of
law even though the failure to comply therewith would not be unlawful), or
has
become impracticable as a result of a contingency occurring after the date
hereof that materially and adversely affects the interbank LIBOR
market;
then,
and
in any such event, such Lender (or the Administrative Agent, in the case of
clause (i)
above) shall within a reasonable time thereafter give
notice (if by telephone, confirmed in
writing)
to the Borrower and to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of
clause (i)
above, LIBOR Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice the Administrative Agent agrees to give at such time when
such circumstances no longer exist), and any Notice of Borrowing or Notice
of
Conversion given by the Borrower with respect to LIBOR Loans that have not
yet
been incurred shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii)
above, the Borrower shall pay to such Lender, promptly
after receipt of written demand therefor such additional amounts as shall be
required to compensate such Lender for such increased costs or reductions in
amounts receivable hereunder (it being agreed that a written notice as to the
additional amounts owed to such Lender, showing in reasonable detail the basis
for the calculation thereof, submitted to the Borrower by such Lender shall,
absent clearly demonstrable error, be final and conclusive and binding upon
all
parties hereto) and (z) in the case of
subclause (iii)
above,
the Borrower shall take one of the actions specified in
Section 2.10(b)
as promptly as possible and, in any event, within the time period required
by
law.
(b) At
any time that any LIBOR Loan is affected by the circumstances described in
Section 2.10(a)(ii)
or
(iii)
, the Borrower may (and in the case of
a LIBOR Loan affected pursuant to
Section 2.10(a)(iii)
shall) either (x)
if the affected LIBOR Loan is then being made pursuant to a Borrowing, cancel
such Borrowing by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the Borrower was notified
by
a Lender pursuant to
Section 2.10(a)(ii)
or
(iii)
or (y) if
the affected LIBOR Loan is then outstanding, upon at least three Business Days’
notice to the Administrative Agent, require the affected Lender to convert
each
such LIBOR Loan into an ABR Loan,
provided
that if more than one Lender
is affected at any time, then all affected Lenders must be treated in the same
manner pursuant to this
Section 2.10(b)
.
(c) If,
after the date hereof, any Change in Law relating to capital adequacy of any
Lender or compliance by any Lender or its parent with any Change in Law relating
to capital adequacy occurring after the date hereof, has or would have the
effect of reducing the rate of return on such Lender’s or its parent’s or its
Affiliate’s capital or assets as a consequence of such Lender’s commitments or
obligations hereunder to a level below that which such Lender or its parent
or
its Affiliate could have achieved but for such Change in Law (taking into
consideration such Lender’s or its parent’s policies with respect to capital
adequacy), then from time to time, promptly after demand by such Lender (with
a
copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or its parent for
such reduction, it being understood and agreed, however, that a Lender shall
not
be entitled to such compensation as a result of such Lender’s compliance with,
or pursuant to any request or directive to comply with, any law, rule or
regulation as in effect on the date hereof. Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this
Section 2.10(c)
, will give prompt written notice thereof to the
applicable Borrower, which notice shall set forth in reasonable detail the
basis
of the calculation of such additional amounts, although the failure to give
any
such notice shall not, subject to
Section 2.13
, release or diminish
the Borrower’s obligations to pay additional amounts pursuant to this
Section 2.10(c)
upon receipt of such notice.
(d) It
is understood that this
Section 2.10
shall not apply to (i) Taxes
indemnifiable under
Section 5.4
, (ii) net income taxes and franchise and
excise taxes (imposed in lieu of net income taxes) imposed on any Agent or
Lender or (iii) Taxes included under clauses (c) and (d) of the definition
of
Excluded Taxes.
2.11.
Compensation
. If
(a) any payment of principal of any LIBOR Loan is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest Period
for such LIBOR Loan as a result of a payment or conversion pursuant to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
13.7
, as a result of acceleration
of the maturity of the Loans pursuant
to
Section 11
or for any other reason, (b) any Borrowing of LIBOR
Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any
ABR Loan is not converted into a LIBOR Loan as a result of a withdrawn Notice
of
Conversion or Continuation, (d) any LIBOR Loan is not continued as a LIBOR
Loan, as the case may be, as a result of a withdrawn Notice of Conversion or
Continuation or (e) any prepayment of principal of any LIBOR Loan is not
made as a result of a withdrawn notice of prepayment pursuant to
Section 5.1
or
5.2
, the Borrower shall, after receipt of a
written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may reasonably
incur as a result of such payment, failure to convert, failure to continue
or
failure to prepay, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such LIBOR Loan.
2.12.
Change
of Lending Office
. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
or
5.4
with respect to such Lender, it will, if requested
by the Borrower,
use reasonable efforts (subject to overall policy considerations of such Lender)
to designate another lending office for any Loans affected by such event,
provided
that such designation is made on such terms that such Lender and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this
Section 2.12
shall affect
or postpone any of the obligations of the Borrower or the right of any Lender
provided in
Section 2.10
or
5.4
.
2.13.
Notice
of Certain Costs
. Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by
Section 2.10
,
2.11
or
5.4
is given by any Lender more
than 180 days after such Lender has knowledge (or should have had
knowledge) of the occurrence of the event giving rise to the additional cost,
reduction in amounts, loss, tax or other additional amounts described in such
Sections, such Lender shall not be entitled to compensation under
Section 2.10
,
2.11
or
5.4
, as the case may be, for any
such amounts incurred or accruing prior to the 181st day prior to the giving
of
such notice to the Borrower.
2.14.
Incremental
Facilities
.
(a) The
Borrower may by written notice to the Administrative Agent elect to request
the
establishment of one or more additional tranches of term loans (the commitments
thereto, the “
New Term Loan Commitments
”), by an amount not in
excess of the Maximum Incremental Facilities Amount in the aggregate from the
Closing Date and not less than
$50,000,000
individually (or such lesser individual amount as shall constitute all remaining
available amounts under the Maximum Incremental Facilities Amount on such
date). Each such notice shall specify the date (each, an
“
Increased Amount Date
”) on which the Borrower proposes that
the New Term Loan Commitments shall be effective, which shall be a date not
less
than ten Business Days after the date on which such notice is delivered to
the
Administrative Agent. The Borrower may approach any Lender or any
Person (other than a natural person) to provide all or a portion of the New
Term
Loan Commitments;
provided
that any Lender offered or approached to
provide all or a portion of the New Term Loan Commitments may elect or decline,
in its sole discretion, to provide a New Term Loan Commitment. In
each case, such New Term Loan Commitments shall become effective as of the
applicable Increased Amount Date;
provided
that (i) no Default or
Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Term Loan Commitments, as applicable; (ii) both
before and after giving effect to the making of any Series of New Term Loans,
each of the conditions set forth in
Section 7
shall be satisfied;
(iii) the New Term Loan Commitments shall be effected pursuant to one or
more Joinder Agreements executed and delivered by the Borrower and
Administrative Agent, and each of which shall be recorded in the Register and
shall be subject to the requirements set forth in
Section 5.4(e)
;
(iv) the Borrower shall make any payments required pursuant to
Section
2.11
in connection with the New Term Loan Commitments, as applicable; and
(v) the Borrower shall deliver or cause to be delivered any legal opinions
or other documents reasonably requested by Administrative Agent in connection
with any such transaction. Any New Term Loans made on an Increased
Amount Date shall be designated a separate series (a “
Series
”)
of New Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) On
any Increased Amount Date on which any New Term Loan Commitments of any Series
are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each Lender with a New Term Loan Commitment (each, a
“
New Term Loan Lender
”) of any Series shall make a Loan to the
Borrower (a “
New Term Loan
”) in an amount equal to its New Term
Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series
shall become a Lender hereunder with respect to the New Term Loan Commitment
of
such Series and the New Term Loans of such Series made pursuant
thereto. Notwithstanding anything to the contrary contained herein,
(x) to the extent the first $100,000,000 of the Maximum Incremental Facilities
Amount, or any portion thereof, shall comprise New Term Loan Commitments to
be
obtained by the Borrower pursuant to this
Section 2.14
, such New Term
Loan Commitments (and corresponding New Term Loans) shall not be permitted
to be
obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated
EBITDA Ratio, on a Pro Forma Basis after giving effect to the incurrence of
such
Indebtedness, shall be no greater than 4.25 to 1.00 on the date of such
incurrence (based on the Consolidated EBITDA as of the most recent Test Period);
and (y) with respect to all remaining New Term Loan Commitments to be obtained
by the Borrower pursuant to this
Section 2.14
, such New Term Loan
Commitments (and corresponding New Term Loans) shall not be permitted to be
obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated
EBITDA Ratio, on a Pro Forma Basis after giving effect to the incurrence of
such
Indebtedness, shall be no greater than4.00 to 1.00 on the date of such
incurrence (based on the Consolidated EBITDA as of the most recent Test
Period).
(d) The
terms and provisions of the New Term Loans and New Term Loan Commitments of
any
Series shall be, except as otherwise set forth herein or in the applicable
Joinder Agreement, at the option of the Borrower, identical to the existing
Tranche B-1 Term Loans or Tranche B-2 Term Loans;
provided
that (i) the
applicable New Term Loan Maturity Date of each Series shall be no earlier than
the Tranche B Term Loan Maturity Date and mandatory prepayment and other payment
rights (other than scheduled amortization) of the New Term Loans shall be
identical to those applicable to the existing Tranche B-1 Term Loans or Tranche
B-2 Term Loans, as the case may be, (ii) the rate of interest and the
amortization schedule applicable to the New Term Loans of each Series shall
be
determined by the Borrower and the applicable new Lenders and shall be set
forth
in each applicable Joinder Agreement;
provided
that such amortization
schedule shall not have a weighted average life to maturity that is shorter
than
that applicable to the Tranche B Term Loans in effect at that time and (iii)
all
other terms applicable to the New Term Loans of each Series that differ from
the
existing Tranche B-1 Term Loans or Tranche B-2 Term Loans, as the case may
be,
shall be reasonably acceptable to the Administrative Agent (as evidenced by
its
execution of the applicable Joinder Agreement).
(e) Each
Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary
or appropriate, in the opinion of the Administrative Agent, to effect the
provision of this
Section 2.14
.
SECTION
3. [
Reserved
].
SECTION
4.
Commitment
Terminations
4.1.
Mandatory
Termination of Commitments
.
(a) The
Tranche B Term Loan Commitments shall terminate at 5:00 p.m. (New York City
time) on the Closing Date.
(b) The
New Term Loan Commitment for any Series shall, unless otherwise provided in
the
applicable Joinder Agreement, terminate at 5:00 p.m. (New York City time)
on the Increased Amount Date for such Series.
SECTION
5.
Payments
5.1.
Voluntary
Prepayments
.
(a) The
Borrower shall have the right to prepay its Term Loans, subject to clause (b)
below, in whole or in part from time to time on the following terms and
conditions: (a) the Borrower shall give the Administrative Agent at
the Administrative Agent’s Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to make such prepayment, the amount of
such
prepayment and (in the case of LIBOR Loans) the specific Borrowing(s) pursuant
to which made, which notice shall be given by the Borrower no later than 12:00
noon (New York City time) (i) in the case of LIBOR Loans, three Business Days
prior to and (ii) in the case of ABR Loans, one Business Day prior to, the
date
of such prepayment and
shall
promptly be transmitted by the Administrative Agent to each of the Lenders;
(b)
each partial prepayment of (i) any Borrowing of LIBOR Loans shall be in a
minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof
and (ii) any ABR Loans shall be in a minimum amount of $1,000,000 and in
multiples of $100,000 in excess thereof;
provided
that no partial
prepayment of LIBOR Loans made pursuant to a single Borrowing shall reduce
the
outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than
the applicable Minimum Borrowing Amount for such LIBOR Loans and (c) any
prepayment of LIBOR Loans pursuant to this
Section 5.1
on any day other
than the last day of an Interest Period applicable thereto shall be subject
to
compliance by the Borrower with the applicable provisions of
Section
2.11
. Each prepayment in respect of any Term Loans pursuant to
this
Section 5.1
shall be (a) applied
pro rata
to the
Tranche B-1 Term Loans, the Tranche B-2 Term Loans and the New Term Loans based
on the applicable remaining Repayment Amounts due thereunder and
(b) subject to the preceding
subclause (a)
, applied to reduce
Tranche B-1 Repayment Amounts, Tranche B-2 Repayment Amounts and/or any New
Term
Loan Repayment Amounts, as the case may be, in such order as the Borrower may
specify.
(b) (i) In
the event that the Tranche B-1 Term Loans are repaid in whole or in part
pursuant to
Section 5.1(a
) or
Section 5.2(a)(i)
on or after the
Closing Date but on or prior to the first anniversary of the Closing Date,
the
Borrower shall pay to Tranche B-1 Term Loan Lenders having Tranche B-1 Term
Loans, a prepayment premium of 1.00% on the amount so repaid and (ii) in the
event that the Tranche B-2 Term Loans are repaid in whole or in part pursuant
to
Section 5.1(a)
or
Section 5.2(a)(i)
, the Borrower shall pay to
Tranche B-2 Term Loan Lenders having Tranche B-2 Term Loans, a prepayment
premium as follows: (i) 2.00% of such amount so repaid if such prepayment occurs
on or after the Closing Date but on or prior to the first anniversary of the
Closing Date and (ii) 1.00% of such amount so repaid if such prepayment occurs
after the first anniversary of the Closing Date but on or prior to the second
anniversary of the Closing Date. Notwithstanding anything to the
contrary contained in this
Section 5.1(b)
, the premiums set forth herein
shall not be applicable to prepayments of Term Loans of up to $150,000,000
in
aggregate principal amount, to the extent such prepayments are made pursuant
to
this
Section 5.1
on or prior to the date that is 45 days after the
Closing Date.
5.2.
Mandatory
Prepayments
.
(a)
Term
Loan Prepayments
. (i) On each occasion that a Prepayment Event
occurs, the Borrower shall, within three Business Days after its receipt of
the
Net Cash Proceeds of a Debt Incurrence Prepayment Event and within seven
Business Days after the occurrence of any other Prepayment Event (or, in the
case of Deferred Net Cash Proceeds, within seven Business Days after the
Deferred Net Cash Proceeds Payment Date), prepay, in accordance with
clause (b)
below, Term Loans in a principal amount equal to 100% of
the Net Cash Proceeds from such Prepayment Event;
provided
that, at the
option of the Borrower, the Net Cash Proceeds of any Disposition of ABL
Collateral, to the extent required under the ABL Documents, may be used to
prepay outstanding loans under the ABL Facility.
(ii) Not
later than the date that is ninety days after the last day of any fiscal year
(commencing with and including the portion of the fiscal year ending on or
about
January 31, 2008 following the Closing Date, the Borrower shall prepay, in
accordance with
clause (b)
below, Term Loans in a principal amount
equal to (x) 50% of Excess Cash Flow for such fiscal
year,
provided
that (A) the percentage in this
Section 5.2(a)(ii)
shall
be reduced to 25% if the ratio of Consolidated Total Debt on the date of
prepayment (prior to giving effect thereto and as certified by an Authorized
Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period
ended prior to such prepayment date is less than or equal to 6.0 to 1.0 but
greater than 5.0 to 1.0 and (B) no payment of any Term Loans shall be
required under this
Section 5.2(a)(ii)
if the ratio of Consolidated
Total Debt on the date of prepayment (prior to giving effect thereto and as
certified by an Authorized Officer of the Borrower) to Consolidated EBITDA
for
the most recent Test Period ended prior to such prepayment date is less than
or
equal to 5.0 to 1.00,
minus
(y) the principal amount of Term Loans
voluntarily prepaid pursuant to
Section 5.1
during such fiscal
year.
(b)
Application
to Repayment Amounts
. Subject to
Section 5.2(f)
, each
prepayment of Term Loans required by
Section 5.2(a)(i)
or
(ii)
shall be allocated
pro rata
among the Tranche B Term Loans and the New
Term Loans based on the applicable remaining Repayment Amounts due thereunder
and shall be applied, first, to the next eight unpaid Repayment Amounts due
in
respect of such Term Loans in direct order of maturity thereof, and, second,
on
a
pro rata
basis among the remaining unpaid Repayment Amounts due in
respect of such Term Loans. Subject to
Section 5.2(f)
,
with respect to each such prepayment, the Borrower will, not later than the
date
specified in
Section 5.2(a)
for making such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing and which
shall include a calculation of the amount of such prepayment to be applied
to
each Class of Term Loans) requesting that the Administrative Agent provide
notice of such prepayment to each Lender.
(c)
Application
to Term Loans
. With respect to each prepayment of Term Loans
required by
Section 5.2(a)
, the Borrower may, if
applicable, designate the Types of Loans that are to be prepaid and
the specific Borrowing(s) pursuant to which made. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in
its
reasonable discretion with a view, but no obligation, to minimize breakage
costs
owing under
Section 2.11
.
(d)
LIBOR
Interest Periods
. In lieu of making any payment pursuant to this
Section 5.2
in respect of any LIBOR Loan other than on the last day
of the Interest Period therefor so long as no Event of Default shall have
occurred and be continuing, the Borrower at its option may deposit with the
Administrative Agent an amount equal to the amount of the LIBOR Loan to be
prepaid and such LIBOR Loan shall be repaid on the last day of the Interest
Period therefor in the required amount. Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on
terms reasonably satisfactory to the Administrative Agent, earning interest
at
the then-customary rate for accounts of such type. Such deposit shall
constitute cash collateral for the LIBOR Loans to be so prepaid,
provided
that the Borrower may at any time direct that such deposit be applied to make
the applicable payment required pursuant to this
Section 5.2
.
(e)
Minimum
Amount
. No prepayment shall be required pursuant to
Section 5.2(a)(i)
(i) in the case of any Disposition yielding
Net Cash Proceeds of less than $2,000,000 in the aggregate and (ii) unless
and until the amount at any time of Net Cash Proceeds from Prepayment Events
required to be applied at or prior to such time pursuant to such Section and
not
yet applied at or prior to such time to prepay Term Loans pursuant to
such
Section
exceeds $25,000,000 in the aggregate for all Prepayment Events (other than
those
that are under the threshold specified in
subclause (i)
) in any one
fiscal year, at which time all such Net Cash Proceeds referred to in this
subclause (ii)
with respect to such fiscal year shall be applied as a
prepayment in accordance with this
Section 5.2
.
(f)
Rejection
Right
. The Borrower shall notify the Administrative Agent in
writing of (i) any voluntary prepayment of Term Loans described in the last
sentence of
Section 5.1(b)
on or prior to the date that is 45 days
after the Closing Date and (ii) any mandatory prepayment of Term Loans required
to be made pursuant to
Section 5.2(a)
, in each case at least three
Business Days prior to the date of such prepayment. Each such notice
shall specify the date of such prepayment and, in the case of prepayments
described in clause (ii) above, provide a reasonably detailed calculation of
the
amount of such prepayment. The Administrative Agent will promptly
notify each Lender holding Term Loans of the contents of the Borrower’s
prepayment notice and of such Lender’s p
ro rata
share of the
prepayment. Each Tranche B Term Loan Lender may reject all or a
portion of its
pro rata
share of any such prepayment of Term Loans (x)
being voluntarily prepaid without any accompanying prepayment premium on or
prior to the date that is 45 days after the Closing Date or (y) required to
be
made pursuant to
Section 5.2(a)
(such declined amounts described in
clause (y)
, the “
Declined Proceeds
”) by providing
written notice (each, a “
Rejection Notice
”) to the
Administrative Agent and the Borrower no later than 5:00 p.m. (New York time)
one Business Day after the date of such Lender’s receipt of notice from the
Administrative Agent regarding such prepayment. Each Rejection Notice
shall specify the principal amount of the mandatory repayment of Tranche B
Term
Loans to be rejected by such Lender. If a Lender fails to deliver a
Rejection Notice to the Administrative Agent within the time frame specified
above or such Rejection Notice fails to specify the principal amount of the
Tranche B Term Loans to be rejected, any such failure will be deemed an
acceptance of the total amount of such prepayment of Tranche B Term
Loans. Any Declined Proceeds remaining thereafter shall be retained
by the Borrower (“
Retained Declined Proceeds”
).
(g)
Foreign
Asset Sales
. Notwithstanding any other provisions of this
Section 5.2
, (i) to the extent that any or all of the Net Cash
Proceeds from a Casualty Event of, or any asset sale by, a Restricted Foreign
Subsidiary giving rise to an Asset Sale Prepayment Event (a “
Foreign
Asset Sale
”) or any amount included in Excess Cash Flow and
attributable to Foreign Subsidiaries are prohibited or delayed by applicable
local law from being repatriated to the United States, such portion of the
Net
Cash Proceeds or Excess Cash Flow so affected will not be required to be applied
to repay Term Loans at the times provided in this
Section 5.2
but
may be retained by the applicable Restricted Foreign Subsidiary so long, but
only so long, as the applicable local law will not permit repatriation to the
United States (the Borrower hereby agreeing to cause the applicable
Restricted Foreign Subsidiary to promptly take all actions required by the
applicable local law to permit such repatriation), and once such repatriation
of
any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under
the applicable local law, such repatriation will be immediately effected and
such repatriated Net Cash Proceeds will be promptly (and in any event not later
than two Business Days after such repatriation) applied (net of additional
taxes payable or reserved against as a result thereof) to the repayment of
the
Term Loans as required pursuant to this
Section 5.2
and (ii) to
the extent that the Borrower has determined in good faith that repatriation
of
any of or all the Net Cash Proceeds of any
Foreign
Asset Sale or Excess Cash Flow would have a material adverse tax consequence
with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash
Proceeds or Excess Cash Flow so affected may be retained by the applicable
Restricted Foreign Subsidiary,
provided
that, in the case of this
clause (ii)
, on or before the date on which any Net Cash Proceeds or
Excess Cash Flow so retained would otherwise have been required to be applied
to
reinvestments or prepayments pursuant to
Section 5.2(a)
,
(x) the Borrower applies an amount equal to such Net Cash Proceeds or
Excess Cash Flow to such reinvestments or prepayments as if such Net Cash
Proceeds or Excess Cash Flow had been received by the Borrower rather than
such
Restricted Foreign Subsidiary, less the amount of additional taxes that would
have been payable or reserved against if such Net Cash Proceeds or Excess Cash
Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash
Flow that would be calculated if received by such Foreign Subsidiary) or
(y) such Net Cash Proceeds or Excess Cash Flow are applied to there
repayment of Indebtedness of a Restricted Foreign Subsidiary.
5.3.
Method
and Place of Payment
.
(a) Except
as otherwise specifically provided herein, all payments under this Agreement
shall be made by the Borrower, without set-off, counterclaim or deduction of
any
kind, to the Administrative Agent for the ratable account of the Lenders
entitled thereto not later than 2:00 p.m. (New York City time), in each
case, on the date when due and shall be made in immediately available funds
at
the Administrative Agent’s Office or at such other office as the Administrative
Agent shall specify for such purpose by notice to the Borrower, it being
understood that written or facsimile notice by the Borrower to the
Administrative Agent to make a payment from the funds in the Borrower’s account
at the Administrative Agent’s Office shall constitute the making of such payment
to the extent of such funds held in such account. All repayments or
prepayments of any Loans (whether of principal, interest or otherwise) hereunder
and all other payments under each Credit Document shall be made in
Dollars. The Administrative Agent will thereafter cause to be
distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 p.m. (New York City time) or, otherwise,
on the next Business Day) like funds relating to the payment of principal or
interest or fees ratably to the Lenders entitled thereto.
(b) Any
payments under this Agreement that are made later than 2:00 p.m. (New York
City time) shall be deemed to have been made on the next succeeding Business
Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
5.4.
Net
Payments
.
(a) Any
and all payments made by or on behalf of the Borrower or any Guarantor under
this Agreement or any other Credit Document shall be made free and clear of,
and
without deduction or withholding for or on account of, any Indemnified
Taxes;
provided
that if the Borrower or any Guarantor shall
be required by applicable Requirements of Law to deduct or withhold any
Indemnified Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions and
withholdings (including
deductions
or withholdings applicable to additional sums payable under this
Section 5.4
) the Administrative Agent, the Collateral Agent or any
Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the
applicable Borrower or such Guarantor shall make such deductions or withholdings
and (iii) the applicable Borrower or such Guarantor shall timely pay the
full amount deducted or withheld to the relevant Governmental Authority within
the time allowed and in accordance with applicable Requirements of
Law. Whenever any Indemnified Taxes are payable by the Borrower or
such Guarantor, as promptly as possible thereafter, the Borrower or Guarantor
shall send to the Administrative Agent for its own account or for the account
of
such Lender, as the case may be, a certified copy of an original official
receipt (or other evidence acceptable to such Lender, acting reasonably)
received by the Borrower or such Guarantor showing payment thereof.
(b) [Reserved].
(c) The
Borrower shall timely pay and shall indemnify and hold harmless the
Administrative Agent, each Collateral Agent and each Lender (whether or not
such
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority) with regard to any Other Taxes.
(d) The
Borrower shall indemnify and hold harmless the Administrative Agent, the
Collateral Agent and each Lender within fifteen Business Days after written
demand therefor, for the full amount of any Indemnified Taxes imposed on the
Administrative Agent, the Collateral Agent or such Lender as the case may be,
on
or with respect to any payment by or on account of any obligation of the
Borrower or any Guarantor hereunder or under any other Credit Document
(including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this
Section 5.4
) and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth reasonable detail as to the
amount of such payment or liability delivered to the Borrower by a Lender,
the
Administrative Agent or the Collateral Agent (as applicable) on its own behalf
or on behalf of a Lender shall be conclusive absent manifest error.
(e) Each
Non-U.S. Lender with respect to the Tranche B Term Loans or any other Loan
made
to the Borrower shall, to the extent it is legally entitled to do
so:
(i)
deliver to the Borrower and the
Administrative Agent, prior to the date on which the first payment to the
Non-U.S. Lender is due hereunder, two copies of (x) in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, United States Internal Revenue Service Form W-8BEN (together
with a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower
and is not a controlled foreign corporation related to the Borrower (within
the
meaning of Section 864(d)(4) of the Code)), (y) Internal Revenue Service
Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed
by
such Non-U.S. Lender claiming complete exemption from, or reduced
rate
of,
U.S.
Federal withholding tax on payments by the Borrower under this Agreement or
(z)
Internal Revenue Service Form W-8IMY and all necessary attachments (including
the forms described in clauses (x) and (y) above, as required); and
(ii) deliver
to the Borrower and the Administrative Agent two further copies of any such
form
or certification (or any applicable successor form) on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower;
unless
in
any such case any Change in Law has occurred prior to the date on which any
such
delivery would otherwise be required that renders any such form inapplicable
or
would prevent such Non-U.S. Lender from duly completing and delivering any
such
form with respect to it and such Non-U.S. Lender promptly so advises the
Borrower and the Administrative Agent. Each Person that shall become
a Participant pursuant to
Section 13.6
or a Lender pursuant to
Section
13.6
shall, upon the effectiveness of the related transfer, be required to
provide all the forms and statements required pursuant to this
Section
5.4(e)
,
provided
that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
(f)
[Reserved].
(g) [Reserved].
(h) If
any Lender, the Administrative Agent or the Collateral Agent, as applicable,
determines, in its sole discretion, that it had received and retained a refund
of an Indemnified Tax (including an Other Tax) for which a payment has been
made
by the Borrower pursuant to this Agreement, which refund in the good faith
judgment of such Lender, the Administrative Agent or the Collateral Agent,
as
the case may be, is attributable to such payment made by the Borrower, then
the
Lender, the Administrative Agent or the Collateral Agent, as the case may be,
shall reimburse the Borrower for such amount (net of all out-of-pocket expenses
of such Lender, the Administrative Agent or the Collateral Agent, as the case
may be, and without interest other than any interest received thereon from
the
relevant Governmental Authority with respect to such refund) as the Lender,
Administrative Agent or the Collateral Agent, as the case may be, determines
in
its sole discretion to be the proportion of the refund as will leave it, after
such reimbursement, in no better or worse position (taking into account expenses
or any taxes imposed on the refund) than it would have been in if the payment
had not been required;
provided
that the Borrower, upon the request of
the Lender, the Administrative Agent or the Collateral Agent, agrees to repay
the amount paid over to it (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Lender, the
Administrative Agent or the Collateral Agent in the event the Lender, the
Administrative Agent or the Collateral Agent is required to repay such refund
to
such Governmental Authority. A Lender, the Administrative Agent or
the Collateral Agent shall claim any refund that it determines is available
to
it, unless it concludes in its sole discretion that it would be adversely
affected by making such a claim. Neither the Lender, the
Administrative Agent nor the Collateral Agent shall be obliged to disclose
any
information regarding its tax affairs or computations to any Credit Party in
connection with this
clause (h)
or any other provision of this
Section 5.4
.
(i) If
the Borrower determines that a reasonable basis exists for contesting a Tax,
each Lender or Agent, as the case may be, shall use reasonable efforts to
cooperate with the Borrower as the Borrower may reasonably request in
challenging such Tax. Subject to the provisions of
Section
2.12
, each Lender and Agent agrees to use reasonable efforts to cooperate
with the Borrower as the Borrower may reasonably request to minimize any amount
payable by the Borrower or Guarantor pursuant to this
Section
5.4
. The Borrower shall indemnify and hold each Lender and Agent
harmless against any out-of-pocket expenses incurred by such Person in
connection with any request made by the Borrower pursuant to this
Section
5.4(i)
. Nothing in this
Section 5.4(i)
shall obligate any
Lender or Agent to take any action that such Person, in its sole judgment,
determines may result in a material detriment to such Person.
(j)
Each Lender and Agent with respect to the Tranche B Term Loans
and any other Loan made to the Borrower that is a United States person under
Section 7701(a)(30) of the Code (each, a “
U.S. Lender
”) shall
deliver to the Borrower and the Administrative Agent two United States Internal
Revenue Service Forms W-9 (or substitute or successor form), properly completed
and duly executed, certifying that such Lender or Agent is exempt from United
States backup withholding (i) on or prior to the Closing Date (or on or prior
to
the date it becomes a party to this Agreement), (ii) on or before the date
that
such form expires or becomes obsolete, (iii) after the occurrence of a change
in
the Agent’s or Lender’s circumstances requiring a change in the most recent form
previously delivered by it to the Borrower and the Administrative Agent, and
(iv) from time to time thereafter if reasonably requested by the Borrower or
the
Administrative Agent.
(k) Any
amount payable under this Agreement or any other Credit Document by the Borrower
or a Guarantor is exclusive of any value added tax or any other Tax of a similar
nature which might be chargeable in connection with that amount. If
any such Tax is chargeable, the Borrower or Guarantor, as the case may be,
shall
pay to the Administrative Agent, Collateral Agent or Lender, as the case may
be,
(in addition to and at the same time as paying that amount) an amount equal
to
the amount of that Tax.
(l) Where
this Agreement or any other Credit Document requires any party to this Agreement
or any Credit Document, as the case may be, to reimburse the Administrative
Agent, the Collateral Agent or a Lender for any costs or expenses, that party
must also at the same time pay and indemnify the Administrative Agent,
Collateral Agent, or Lender, as the case may be against all value added tax
or
any other Tax of a similar nature incurred by the Administrative Agent, the
Collateral Agent or a Lender in respect of the costs and expenses to the extent
that the Administrative Agent, Collateral Agent or Lender acting reasonably
determines that it is not entitled to a credit or repayment from the relevant
tax authority in respect of that tax.
(m) The
agreements in this
Section 5.4
shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
5.5.
Computations
of Interest and Fees
. Except
as provided in the next succeeding sentence, interest on LIBOR Loans and ABR
Loans shall be calculated on the basis of a 360-day year for the actual days
elapsed. Interest on ABR Loans in respect of which the rate of
interest is calculated on the basis of the Administrative Agent’s prime rate and
interest on
overdue
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed.
5.6.
Limit
on Rate of Interest
.
(a)
No
Payment Shall Exceed Lawful Rate
. Notwithstanding any other term
of this Agreement, the Borrower shall not be obligated to pay any interest
or
other amounts under or in connection with this Agreement or otherwise in respect
of the Obligations in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.
(b)
Payment
at Highest Lawful Rate
. If the Borrower is not obliged to make a
payment that it would otherwise be required to make, as a result of
Section
5.6(a)
, the Borrower shall make such payment to the maximum extent permitted
by or consistent with applicable laws, rules and regulations.
(c)
Adjustment
if Any Payment Exceeds Lawful Rate
. If any provision of this
Agreement or any of the other Credit Documents would obligate the Borrower
to
make any payment of interest or other amount payable to any Lender in an amount
or calculated at a rate that would be prohibited by any applicable law, rule
or
regulation, then notwithstanding such provision, such amount or rate shall
be
deemed to have been adjusted with retroactive effect to the maximum amount
or
rate of interest, as the case may be, as would not be so prohibited by law,
such
adjustment to be effected, to the extent necessary, by reducing the amount
or
rate of interest required to be paid by the Borrower to the affected Lender
under
Section 2.8
.
(d) Notwithstanding
the foregoing, and after giving effect to all adjustments contemplated thereby,
if any Lender shall have received from the Borrower an amount in excess of
the
maximum permitted by any applicable law, rule or regulation, then the Borrower
shall be entitled, by notice in writing to the Administrative Agent to obtain
reimbursement from that Lender in an amount equal to such excess, and pending
such reimbursement, such amount shall be deemed to be an amount payable by
that
Lender to the Borrower.
SECTION
6.
Conditions
Precedent to Initial Borrowing
The
initial Borrowing under this Agreement is subject to the satisfaction of the
following conditions precedent, except as otherwise agreed between the Borrower
and the Administrative Agent.
6.1.
Credit
Documents
. The
Administrative Agent shall have received:
(a) this
Agreement, executed and delivered by a duly authorized officer of the Borrower
and each Lender;
(b) the
Guarantee, executed and delivered by a duly authorized officer of each
Guarantor;
(c) the
Pledge Agreement, executed and delivered by a duly authorized officer of each
pledgor party thereto;
(d) the
Security Agreement, executed and delivered by a duly authorized officer of
each
grantor party thereto; and
(e) the
Intercreditor Agreement, executed and delivered by a duly authorized officer
of
the applicable Credit Parties and of the Collateral Agent and the other agents
party thereto.
6.2.
Collateral
. Except
for any items referred to on
Schedule 9.14(d)
:
(a) (i)
All outstanding equity interests in whatever form of each Subsidiary directly
owned by or on behalf of any Credit Party and required to be pledged pursuant
to
the Pledge Agreement shall have been pledged pursuant thereto and (ii) the
Collateral Agent shall have received all certificates representing securities
pledged under the Pledge Agreement to the extent certificated, accompanied
by
instruments of transfer and undated stock powers endorsed in blank;
(b) All
documents and instruments, including Uniform Commercial Code or other applicable
personal property and financing statements, reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by any Security Document and perfect such Liens to the
extent required by, and with the priority required by, such Security Document
shall have been delivered to the Collateral Agent for filing, registration
or
recording and none of the Collateral shall be subject to any other pledges,
security interests or mortgages, except for liens permitted
hereunder;
(c) The
Borrower shall deliver to the Collateral Agent a completed Perfection
Certificate, executed and delivered by an Authorized Officer of the Borrower,
together with all attachments contemplated thereby; and
(d) The
Guarantee shall be in full force and effect.
6.3.
Legal
Opinions
. The
Administrative Agent shall have received the executed legal opinions of
(a) Simpson Thacher & Bartlett LLP, special New York counsel to the
Borrower, substantially in the form of
Exhibit H-1
, (b) Susan S.
Lanigan, General Counsel of the Borrower, substantially in the form of
Exhibit H-2
and (c) local counsel to the Borrower and the
Administrative Agent in the jurisdictions listed on
Schedule 6.3
in
form and substance reasonably satisfactory to the Administrative
Agent. The Borrower, the other Credit Parties and the Administrative
Agent hereby instruct such counsel to deliver such legal opinions.
6.4.
Contemporaneous
Debt Financings and Repayments
. (i) The
Borrower shall have received gross proceeds of $1,175,000,000 from the issuance
of Senior Notes under the Senior Notes Indenture, (ii) the Borrower shall have
received gross proceeds of $725,000,000 from the issuance of Senior Subordinated
Notes under the Senior Subordinated Notes Indenture and (iii) the Borrower
and the applicable borrowers and guarantors thereunder shall have entered into
the ABL Facility providing for revolving borrowings in an aggregate principal
amount of up to $1,125,000,000.
6.5.
Equity
Investments
.
Equity
Investments, which, to the extent constituting Stock other than common Stock,
shall be on terms and conditions and pursuant to documentation reasonably
satisfactory to the Joint Lead Arrangers and Bookrunners to the extent material
to the interests of the Lenders, in an amount not less than the Minimum Equity
Amount shall have been made.
6.6.
Closing
Certificates
. The
Administrative Agent shall have received a certificate of the Credit Parties,
dated the Closing Date, substantially in the form of
Exhibit I
, with
appropriate insertions, executed by the President or any Vice President and
the
Secretary or any Assistant Secretary of each Credit Party, and attaching the
documents referred to in
Section 6.7
and such other closing certificates
as it may reasonably request.
6.7.
Authorization
of Proceedings of Each Credit Party
. The
Administrative Agent shall have received a copy of the resolutions, in form
and
substance satisfactory to the Administrative Agent, of the board of directors
or
other managers of each Credit Party (or a duly authorized committee thereof)
authorizing (a) the execution, delivery and performance of the Credit Documents
(and any agreements relating thereto) to which it is a party and (b) in the
case
of the Borrower, the extensions of credit contemplated hereunder.
6.8.
Fees
. The
Agents shall have received the fees in the amounts previously agreed in writing
by the Agents to be received on the Closing Date and all expenses (including
the
reasonable fees, disbursements and other charges of counsel) payable by the
Credit Parties for which invoices have been presented prior to the Closing
Date
shall have been paid.
6.9.
Representations
and Warranties
. On
the Closing Date, (a) there shall be no breach of any representation made by
the
Company in the Acquisition Agreement that is (i) material to the interests
of
the Lenders and (ii) the breach of which would give the Sponsor
and/or any of its Affiliates formed to consummate the Merger (including Merger
Sub) the right to terminate their respective obligations thereunder, and (b)
the
representations and warranties made by the Credit Parties in
Section 8.2
,
Section 8.5
and
Section 8.7
, as they relate to the Credit Parties
at such time, shall be true and correct in all material respects.
6.10.
Related
Agreements
. The
Administrative Agent shall have received a fully executed or conformed copy
of
the Acquisition Agreement which shall be in full force and effect.
6.11.
Solvency
Certificate
. On
the Closing Date, the Administrative Agent shall have received a certificate
from an Authorized Officer of the Borrower to the effect that after giving
effect to the consummation of the Transactions, the Borrower on a consolidated
basis with its Subsidiaries is Solvent.
6.12.
Merger
. Concurrently
with the initial Credit Event hereunder, the Merger shall have been consummated
in accordance with the terms of the Acquisition Agreement, without giving effect
to any amendments or waivers thereto that are materially adverse to the Lenders
(including, without limitation, the definition of, and representations,
warranties and conditions relating to the absence of any, “Company Material
Adverse Effect” therein) without the reasonable consent of the Joint Lead
Arrangers and Bookrunners, and all Indebtedness of the
Borrower
and its Subsidiaries existing prior to the Merger (other than Indebtedness
set
forth on Schedule 10.1 and Indebtedness of Credit Parties owed to other Credit
Parties permitted by
Section 10.1(b)
) shall have been repaid or
repurchased in full.
6.13.
Pro
Forma Balance Sheet
. The
Administrative Agent shall have received a pro forma consolidated balance sheet
of the Borrower as of the last day of the most recently completed fiscal quarter
ended at least twenty consecutive Business Days prior to the Closing Date,
after
giving effect to the Transactions, together with a certificate of an Authorized
Officer of the Borrower to the effect that such statement accurately presents
the pro forma consolidated financial position of the Borrower in accordance
with
GAAP.
6.14.
Patriot Act
. The
Joint Lead Arrangers and Bookrunners shall have received such documentation
and
information as is reasonably requested in writing at least 10 days prior to
the
Closing Date by the Administrative Agent about the Borrower and the Guarantors
in respect of applicable “know your customer” and anti-money laundering rules
and regulations, including, without limitation, the Patriot Act.
SECTION
7.
Conditions Precedent
to All Credit Events
The
agreement of each Lender to make any Loan requested to be made by it on any
date
is subject to the satisfaction of the following conditions
precedent:
7.1.
No
Default; Representations and Warranties
. At
the time of each Credit Event and also after giving effect thereto (other than
any Credit Event on the Closing Date) (a) no Default or Event of Default
shall have occurred and be continuing and (b) all representations and warranties
made by any Credit Party contained herein or in the other Credit Documents
shall
be true and correct in all material respects with the same effect as though
such
representations and warranties had been made on and as of the date of such
Credit Event (except where such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall
have
been true and correct in all material respects as of such earlier
date).
7.2.
Notice
of Borrowing
. Prior
to the making of each Term Loan, the Administrative Agent shall have received
a
Notice of Borrowing (whether in writing or by telephone) meeting the
requirements of
Section 2.3
.
The
acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that
all
the applicable conditions specified in
Section 7
above have been
satisfied as of that time.
SECTION
8.
Representations,
Warranties and Agreements
In
order
to induce the Lenders to enter into this Agreement and to make the Loans as
provided for herein, the Borrower makes (on the Closing Date and on each other
date as required or otherwise set forth in this Agreement) the following
representations and warranties to, and agreements with, the Lenders,
all of which shall survive the execution and delivery of this Agreement and
the
making of the Loans:
8.1.
Corporate
Status
. The
Borrower and each Material Subsidiary (a) is a duly organized and validly
existing corporation or other entity in good standing under the laws of the
jurisdiction of its organization and has the corporate or other organizational
power and authority to own its property and assets and to transact the business
in which it is engaged and (b) has duly qualified and is authorized to do
business and is in good standing (if applicable) in all jurisdictions where
it
is required to be so qualified, except where the failure to be so qualified
could not reasonably be expected to result in a Material Adverse
Effect.
8.2.
Corporate
Power and Authority
. Each
Credit Party has the corporate or other organizational power and authority
to
execute, deliver and carry out the terms and provisions of the Credit Documents
to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance
of
the Credit Documents to which it is a party. Each Credit Party has
duly executed and delivered each Credit Document to which it is a party and
each
such Credit Document constitutes the legal, valid and binding obligation of
such
Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws
affecting creditors’ rights generally and subject to general principles of
equity.
8.3.
No
Violation
. Neither
the execution, delivery or performance by any Credit Party of the Credit
Documents to which it is a party nor compliance with the terms and provisions
thereof nor the consummation of the Merger and the other transactions
contemplated hereby or thereby will (a) contravene any applicable provision
of any material law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (b) result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the
obligation to create or impose) any Lien upon any of the property or assets
of
such Credit Party or any of the Restricted Subsidiaries (other than Liens
created under the Credit Documents or Liens subject to the Intercreditor
Agreement) pursuant to, the terms of any material indenture, loan agreement,
lease agreement, mortgage, deed of trust, agreement or other material instrument
to which such Credit Party or any of the Restricted Subsidiaries is a party
or
by which it or any of its property or assets is bound (any such term, covenant,
condition or provision, a “
Contractual Requirement
”) other than
(x) any such breach, default or Lien that could not reasonably be expected
to
result in a Material Adverse Effect or (y) as disclosed on
Schedule 8.3
or (c) violate any provision of the certificate of incorporation, by-laws or
other organizational documents of such Credit Party or any of the Restricted
Subsidiaries.
8.4.
Litigation
. Except
as set forth on
Schedule 8.4
, there are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of the Borrower,
threatened with respect to the Borrower or any of its Subsidiaries that could
reasonably be expected to result in a Material Adverse Effect.
8.5.
Margin
Regulations
. Neither
the making of any Loan hereunder nor the use of the proceeds thereof will
violate the provisions of Regulation T, U or X of the Board.
8.6.
Governmental
Approvals
. The
execution, delivery and performance of the Acquisition Agreement and each Credit
Document do not require any consent or approval of, registration or filing
with,
or other action by, any Governmental Authority, except for (i) such
as
have
been
obtained or made and are in full force and effect, (ii) filings and recordings
in respect of the Liens created pursuant to the Security Documents and the
ABL
Documents and (iii) such licenses, approvals, authorizations or consents the
failure of which to obtain or make could not reasonably be expected to have
a
Material Adverse Effect.
8.7.
Investment
Company Act
.
The
Borrower is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
8.8.
True
and Complete Disclosure
.
(a) None
of the written factual information and written data (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of the Borrower,
any
of the Subsidiaries or any of their respective authorized representatives to
the
Administrative Agent, any Joint Lead Arranger, and/or any Lender on or before
the Closing Date (including all such information and data contained in
(i) the Confidential Information Memorandum (as updated prior to the
Closing Date and including all information incorporated by reference therein)
and (ii) the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein contained any untrue statement
of any material fact or omitted to state any material fact necessary to make
such information and data (taken as a whole) not misleading at such time in
light of the circumstances under which such information or data was furnished,
it being understood and agreed that for purposes of this
Section 8.8(a)
,
such factual information and data shall not include
pro
forma
financial information, projections or estimates (including financial estimates,
forecasts and other forward-looking information) and information of a general
economic or general industry nature.
(b) The
projections (including financial estimates, forecasts and other forward-looking
information) contained in the information and data referred to in
Section
8.8(a)
above were based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed
as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results.
8.9.
Financial
Condition; Financial Statements
. (a) The
unaudited historical consolidated financial information of the Borrower as
set
forth in the Confidential Information Memorandum and (b) the Historical
Financial Statements, in each case present fairly in all material respects
the
consolidated financial position of the Borrower at the respective dates of
said
information, statements and results of operations for the respective periods
covered thereby. The unaudited pro forma consolidated balance sheet
of the Borrower and its Subsidiaries as at May 4,
2007 (including the notes thereto) (the “
Pro Forma Balance
Sheet
”) and the unaudited pro forma consolidated statement of
operations of the Borrower and its Subsidiaries for the 12-month period ending
on such date (together with the Pro Forma Balance Sheet, the “
Pro Forma
Financial Statements
”), copies of which have heretofore been furnished
to the Administrative Agent, have been prepared based on (x) the Historical
Financial Statements and (y) the unaudited historical consolidated financial
information described in
clause (a)
of this
Section 8.9
and have
been prepared in good faith, based on assumptions believed by the Borrower
to be
reasonable as of the date of delivery thereof, and present fairly in all
material respects on a Pro Forma Basis the estimated financial position of
the
Borrower and its
Subsidiaries
as at May 4, 2007 and their estimated results of operations for the period
covered thereby. The financial statements referred to in
clause (b)
of this
Section 8.9
have been prepared in
accordance with GAAP consistently applied except to the extent provided in
the
notes to said financial statements. After the Closing Date, there has
been no Material Adverse Effect.
8.10.
Tax
Matters
. Except
where the failure of which could not be reasonably expected to have a Material
Adverse Effect, (a) each of the Borrower and the Subsidiaries has filed all
federal income tax returns and all other tax returns, domestic and foreign,
required to be filed by it and has paid all material taxes payable by it that
have become due, other than those (i) not yet delinquent or
(ii) contested in good faith as to which adequate reserves have been
provided to the extent required by law and in accordance with GAAP and (b)
the
Borrower and each of the Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of management of the Borrower or such
Subsidiary) in accordance with GAAP for the payment of, all federal, state,
provincial and foreign taxes applicable for the current fiscal year to the
Closing Date.
8.11.
Compliance
with ERISA
.
(a) Each
Plan is in compliance with ERISA, the Code and any applicable Requirement of
Law; no Reportable Event has occurred (or is reasonably likely to occur) with
respect to any Plan; no Plan is insolvent or in reorganization (or is reasonably
likely to be insolvent or in reorganization), and no written notice of any
such
insolvency or reorganization has been given to the Borrower or any ERISA
Affiliate; no Plan (other than a Multiemployer Plan) has an accumulated or
waived funding deficiency (or is reasonably likely to have such a deficiency);
on and after the effectiveness of the Pension Act, each Plan that is subject
to
Title IV of ERISA has satisfied the minimum funding standards (within the
meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such
Plan, and there has been no determination that any such Plan is, or is expected
to be, in “at risk” status (within the meaning of Section 4010(d)(2) of
ERISA);none of the Borrower or any ERISA Affiliate has incurred (or is
reasonably likely to incur) any liability to or on account of a Plan pursuant
to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or Section 4971 or 4975 of the Code or has been notified in writing that
it will incur any liability under any of the foregoing Sections with respect
to
any Plan; no proceedings have been instituted (or are reasonably likely to
be
instituted) to terminate or to reorganize any Plan or to appoint a trustee
to
administer any Plan, and no written notice of any such proceedings has been
given to the Borrower or any ERISA Affiliate; and no lien imposed under the
Code
or ERISA on the assets of the Borrower or any ERISA Affiliate exists (or is
reasonably likely to exist) nor has the Borrower or any ERISA Affiliate been
notified in writing that such a lien will be imposed on the assets of the
Borrower or any ERISA Affiliate on account of any Plan, except to the extent
that a breach of any of the representations, warranties or agreements in this
Section 8.11(a)
would not result, individually or in the aggregate, in an
amount of liability that would be reasonably likely to have a Material Adverse
Effect. No Plan (other than a Multiemployer Plan) has an Unfunded
Current Liability that would, individually or when taken together with any
other
liabilities referenced in this
Section 8.11(a)
, be reasonably likely
to have a Material Adverse Effect. With respect to Plans that are
Multiemployer Plans (as defined in Section 3(37) of ERISA), the representations
and warranties in this
Section 8.11(a)
, other than any made with respect
to (i) liability under Section
4201
or
4204 of ERISA or (ii) liability for termination or reorganization of such Plans
under ERISA, are made to the best knowledge of the Borrower.
(b) All
Foreign Plans are in compliance with, and have been established, administered
and operated in accordance with, the terms of such Foreign Plans and applicable
law, except for any failure to so comply, establish, administer or operate
the
Foreign Plans as would not reasonably be expected to have a Material Adverse
Effect. All contributions or other payments which are due with
respect to each Foreign Plan have been made in full and there are no funding
deficiencies thereunder, except to the extent any such events would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.12.
Subsidiaries
.
Schedule 8.12
lists each Subsidiary of the Borrower (and the direct and
indirect ownership interest of the Borrower therein), in each case existing
on
the Closing Date. Each Material Subsidiary as of the Closing Date has
been so designated on
Schedule 8.12
.
8.13.
Intellectual
Property
. The
Borrower and each of the Subsidiaries have obtained all intellectual property,
free from burdensome restrictions, that is necessary for the operation of their
respective businesses as currently conducted and as proposed to be conducted,
except where the failure to obtain any such rights could not reasonably be
expected to have a Material Adverse Effect.
8.14.
Environmental
Laws
.
(a) Except
as could not reasonably be expected to have a Material Adverse
Effect: (i) the Borrower and each of the Subsidiaries and all Real
Estate are in compliance with all Environmental Laws; (ii) neither the Borrower
nor any Subsidiary is subject to any Environmental Claim or any other liability
under any Environmental Law; (iii) neither the Borrower nor any Subsidiary
is
conducting any investigation, removal, remedial or other corrective action
pursuant to any Environmental Law at any location; and (iv) no underground
storage tank or related piping, or any impoundment or disposal area containing
Hazardous Materials is located at, on or under any Real Estate currently owned
or leased by the Borrower or any of its Subsidiaries.
(b) Neither
the Borrower nor any of the Subsidiaries has treated, stored, transported,
released or disposed or arranged for disposal or transport for disposal of
Hazardous Materials at, on, under or from any currently or formerly owned or
leased Real Estate or facility in a manner that could reasonably be expected
to
have a Material Adverse Effect.
8.15.
Properties
.
(a) Except
as set forth on
Schedule 8.15(a)
, the Borrower and each of the
Subsidiaries have good and marketable title to or leasehold interests in all
properties that are necessary for the operation of their respective businesses
as currently conducted and as proposed to be conducted, free and clear of all
Liens (other than any Liens permitted by this Agreement) and except where the
failure to have such good title could not reasonably be expected to have a
Material Adverse Effect and (b) no Mortgage encumbers improved Real Estate
that
is located in
an
area
that has been identified by the Secretary of Housing and Urban Development
as an
area having special flood hazards within the meaning of the National Flood
Insurance Act of 1968 unless flood insurance available under such Act has been
obtained.
8.16.
Solvency
. On
the Closing Date (after giving effect to the Transactions), immediately
following the making of each Loan and after giving effect to the application
of
the proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries will be Solvent.
SECTION
9.
Affirmative
Covenants
The
Borrower hereby covenants and agrees that on the Closing Date and thereafter,
until the Commitments have terminated and the Loans, together with interest,
fees and all other Obligations incurred hereunder (other than contingent
indemnity obligations), are paid in full:
9.1.
Information
Covenants
. The
Borrower will furnish to the Administrative Agent (which shall promptly make
such information available to the Lenders in accordance with its customary
practice):
(a)
Annual
Financial Statements
. As soon as available and in any event
within 5 days after the date on which such financial statements are required
to
be filed with the SEC (after giving effect to any permitted extensions) (or,
if
such financial statements are not required to be filed with the SEC, on or
before the date that is 95 days after the end of each such fiscal year), the
consolidated balance sheets of the Borrower and the Subsidiaries and, if
different, the Borrower and the Restricted Subsidiaries, in each case as at
the
end of such fiscal year, and the related consolidated statements of operations
and cash flows for such fiscal year, setting forth comparative consolidated
figures for the preceding fiscal years (or, in lieu of such audited financial
statements of the Borrower and the Restricted Subsidiaries, a detailed
reconciliation, reflecting such financial information for the Borrower and
the
Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries,
on the other hand), all in reasonable detail and prepared in accordance with
GAAP, and, in each case, certified by independent certified public accountants
of recognized national standing whose opinion shall not be qualified as to
the
scope of audit or as to the status of the Borrower or any of the Material
Subsidiaries (or a group of Subsidiaries that together would constitute a
Material Subsidiary) as to a going concern, together in any event with a
certificate of such accounting firm stating that in the course of either
(i) its regular audit of the consolidated business of the Borrower, which
audit was conducted in accordance with generally accepted auditing standards
or
(ii) performing certain other procedures permitted by professional
standards, such accounting firm has obtained no knowledge of any Event of
Default relating to
Section 10.9
that has occurred and is continuing
or, if in the opinion of such accounting firm such an Event of Default has
occurred and is continuing, a statement as to the nature thereof.
(b)
Quarterly
Financial Statements
. On or before the date that is 75 days after
the end of the fiscal quarter ending August 3, 2007 and, thereafter, as soon
as
available
and
in
any event within 5 days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) with respect to each of the first three quarterly accounting periods
in each fiscal year of the Borrower (or, if such financial statements are not
required to be filed with the SEC, on or before the date that is 50 days
after the end of each such quarterly accounting period), the consolidated
balance sheets of the Borrower and the Subsidiaries and, if different, the
Borrower and the Restricted Subsidiaries, in each case as at the end of such
quarterly period and the related consolidated statements of operations for
such
quarterly accounting period and for the elapsed portion of the fiscal year
ended
with the last day of such quarterly period, and the related consolidated
statement of cash flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period,
and
setting forth comparative consolidated figures for the related periods in the
prior fiscal year or, in the case of such consolidated balance sheet, for the
last day of the prior fiscal year (or, in lieu of such unaudited financial
statements of the Borrower and the Restricted Subsidiaries, a detailed
reconciliation reflecting such financial information for the Borrower and the
Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries,
on the other hand), all of which shall be certified by an Authorized Officer
of
the Borrower as fairly presenting in all material respects the financial
condition, results of operations, stockholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments.
(c)
Officer’s
Certificates
. At the time of the delivery of the financial
statements provided for in
Section 9.1(a)
and
(b)
, a certificate
of an Authorized Officer of the Borrower to the effect that no Default or Event
of Default exists or, if any Default or Event of Default does exist, specifying
the nature and extent thereof, which certificate shall set forth (i) a
specification of any change in the identity of the Restricted Subsidiaries
and
Unrestricted Subsidiaries as at the end of such fiscal year or period, as the
case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries,
respectively, provided to the Lenders on the Closing Date or the most recent
fiscal year or period, as the case may be, (ii) the amount of any Pro Forma
Adjustment not previously set forth in a Pro Forma Adjustment Certificate or
any
change in the amount of a Pro Forma Adjustment set forth in any Pro Forma
Adjustment Certificate previously provided and, in either case, in reasonable
detail, the calculations and basis therefor. At the time of the
delivery of the financial statements provided for in
Section 9.1(a)
,
(i) a certificate of an Authorized Officer of the Borrower setting forth in
reasonable detail the Applicable Amount and the Applicable Equity Amount as
at
the end of the fiscal year to which such financial statements relate and (ii)
a
certificate of an Authorized Officer of the Borrower setting forth the
information required pursuant to Section I (other than section D thereof) of
the
Perfection Certificate or confirming that there has been no change in such
information since the Closing Date or the date of the most recent certificate
delivered pursuant to this
clause (c)(ii)
, as the case may
be.
(d)
Notice
of Default; Litigation
. Promptly after an Authorized Officer of
the Borrower or any of the Subsidiaries obtains knowledge thereof, notice
of (i)
the occurrence of any event that constitutes a Default or Event of Default,
which notice shall
specify
the nature thereof, the period of existence thereof and what action the Borrower
proposes to take with respect thereto and (ii) any litigation or governmental
proceeding pending against the Borrower or any of the Subsidiaries that could
reasonably be expected to be determined adversely and, if so determined,
to
result in a Material Adverse Effect.
(e)
Environmental
Matters
. Promptly after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters would
not, individually or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect, notice of:
(i) any
pending or threatened Environmental Claim against any Credit Party or any
Real
Estate;
(ii) any
condition or occurrence on any Real Estate that (x) could reasonably be expected
to result in noncompliance by any Credit Party with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of an Environmental
Claim against any Credit Party or any Real Estate;
(iii) any
condition or occurrence on any Real Estate that could reasonably be anticipated
to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental
Law; and
(iv) the
conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, release or threatened
release of any Hazardous Material on, at, under or from any Real
Estate.
All
such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
response thereto. The term “
Real Estate
” shall mean
land, buildings and improvements owned or leased by any Credit Party, but
excluding all operating fixtures and equipment, whether or not incorporated
into
improvements.
(f)
Other
Information
. Promptly upon filing thereof, copies of any filings
(including on Form 10-K, 10-Q or 8-K) or registration statements with, and
reports to, the SEC or any analogous Governmental Authority in any relevant
jurisdiction by the Borrower or any of the Subsidiaries (other than amendments
to any registration statement (to the extent such registration statement, in
the
form it becomes effective, is delivered to the Administrative Agent), exhibits
to any registration statement and, if applicable, any registration statements
on
Form S-8) and copies of all financial statements, proxy statements, notices
and
reports that the Borrower or any of the Subsidiaries shall send to the holders
of any publicly issued debt of the Borrower and/or any of the Subsidiaries
(including the Notes (whether publicly issued or not)) and lenders and agents
under the ABL Facility, in each case in their capacity as such holders, lenders
or agents (in each case to the extent not theretofore delivered to the
Administrative Agent pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender
(acting
through the Administrative Agent) may reasonably request in writing from time
to
time.
(g)
Pro
Forma Adjustment Certificate
. Not later than any date on which
financial statements are delivered with respect to any Test Period in which
a
Pro Forma Adjustment is made as a result of the consummation of the acquisition
of any Acquired Entity or Business by the Borrower or any Restricted Subsidiary
for which there shall be a Pro Forma Adjustment, a certificate of an Authorized
Officer of the Borrower setting forth the amount of such Pro Forma Adjustment
and, in reasonable detail, the calculations and basis therefor.
(h)
Projections
. Within
ninety (90) days after the end of each fiscal year (beginning with the fiscal
year ending on or about January 31, 2009) of the Borrower, a reasonably detailed
consolidated budget for the following fiscal year as customarily prepared by
management of the Borrower for its internal use (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of
the following fiscal year, the related consolidated statements of projected
cash
flow and projected income and a summary of the material underlying assumptions
applicable thereto) (collectively, the “
Projections
”), which
Projections shall in each case be accompanied by a certificate of an Authorized
Officer stating that such Projections have been prepared in good faith on the
basis of the assumptions stated therein, which assumptions were believed to
be
reasonable at the time of preparation of such Projections, it being understood
that actual results may vary from such Projections.
Notwithstanding
the foregoing, the obligations in
clauses (a)
,
(b)
and
(f)
of this
Section 9.1
may be satisfied with respect to financial
information of the Borrower and the Restricted Subsidiaries by furnishing (A)
the applicable financial statements of any direct or indirect parent of the
Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as
applicable, Form 10-K or 10-Q, as applicable, filed with the SEC;
provided
that, with respect to each of
subclauses (A)
and
(B)
of this paragraph, to the extent such information
relates to a parent
of the Borrower, such information is accompanied by consolidating or other
information that explains in reasonable detail the differences between the
information relating to such parent, on the one hand, and the information
relating to the Borrower and the Restricted Subsidiaries on a standalone basis,
on the other hand.
9.2.
Books,
Records and Inspections
. The
Borrower will, and will cause each Restricted Subsidiary to, permit officers
and
designated representatives of the Administrative Agent or the Required Lenders
to visit and inspect any of the properties or assets of the Borrower or such
Subsidiary in whomsoever’s possession to the extent that it is within such
party’s control to permit such inspection (and shall use commercially reasonable
efforts to cause such inspection to be permitted to the extent that it is not
within such party’s control to permit such inspection), and to examine the books
and records of the Borrower and any such Subsidiary and discuss the affairs,
finances and accounts of the Borrower and of any such Subsidiary with, and
be
advised as to the same by, its and their officers and independent accountants,
all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Required Lenders may desire (and
subject, in the case of any such meetings or advice from such independent
accountants, to such accountants’ customary policies and procedures);
provided
that, excluding
any
such
visits and inspections during the continuation of an Event of Default (a) only
the Administrative Agent on behalf of the Required Lenders may exercise rights
of the Administrative Agent and the Lenders under this
Section 9.2
,
(b) without limiting the rights of the Administrative Agent under (and as
defined in) the ABL Facility, the Administrative Agent shall not exercise such
rights more than two times in any calendar year and (c) only one such visit
shall be at the Borrower’s expense;
provided
further
that when an
Event of Default exists, the Administrative Agent (or any of its representatives
or independent contractors) or any representative of the Required Lenders may
do
any of the foregoing at the expense of the Borrower at any time during normal
business hours and upon reasonable advance notice. The Administrative
Agent and the Required Lenders shall give the Borrower the opportunity to
participate in any discussions with the Borrower’s independent public
accountants.
9.3.
Maintenance
of Insurance
. The
Borrower will, and will cause each Material Subsidiary to, at all times maintain
in full force and effect, pursuant to self-insurance arrangements or with
insurance companies that the Borrower believes (in the good faith judgment
of
the management of the Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such
amounts (after giving effect to any self-insurance which the Borrower believes
(in the good faith judgment of management of the Borrower) is reasonable and
prudent in light of the size and nature of its business) and against at least
such risks (and with such risk retentions) as the Borrower believes (in the
good
faith judgment of management of the Borrower) is reasonable and prudent in
light
of the size and nature of its business; and will furnish to the Administrative
Agent, upon written request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried.
9.4.
Payment
of Taxes
. The
Borrower will pay and discharge, and will cause each of the Subsidiaries to
pay
and discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which material penalties attach thereto,
and all lawful material claims in respect of any Taxes imposed, assessed or
levied that, if unpaid, could reasonably be expected to become a material Lien
upon any properties of the Borrower or any of the Restricted Subsidiaries,
provided
that neither the Borrower, nor any of the Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of management of the Borrower) with respect
thereto in accordance with GAAP and the failure to pay could not reasonably
be
expected to result in a Material Adverse Effect.
9.5.
Consolidated
Corporate Franchises
. The
Borrower will do, and will cause each Material Subsidiary to do, or cause to
be
done, all things necessary to preserve and keep in full force and effect its
existence, corporate rights and authority, except to the extent that the failure
to do so could not reasonably be expected to have a Material Adverse Effect;
provided
,
however
, that the Borrower and its Subsidiaries may
consummate any transaction permitted under
Section 10.3
,
10.4
or
10.5
.
9.6.
Compliance
with Statutes, Regulations, Etc
.
The
Borrower will, and will cause each Subsidiary to, comply with all applicable
laws, rules, regulations and orders applicable to it or its property, including
all governmental approvals or authorizations required to
conduct
its business, and to maintain all such governmental approvals or authorizations
in full force and effect, in each case except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
9.7.
ERISA
. (a) Promptly
after the Borrower or any ERISA Affiliate knows or has reason to know of the
occurrence of any of the following events that, individually or in the aggregate
(including in the aggregate such events previously disclosed or exempt from
disclosure hereunder, to the extent the liability therefor remains outstanding),
would be reasonably likely to have a Material Adverse Effect, the
Borrower will deliver to the Administrative Agent a certificate of an Authorized
Officer or any other senior officer of the Borrower setting forth details as
to
such occurrence and the action, if any, that the Borrower or such ERISA
Affiliate is required or proposes to take, together with any notices (required,
proposed or otherwise) given to or filed with or by the Borrower, such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant’s benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having
an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a
Plan;
that the PBGC has notified the Borrower or any ERISA Affiliate of its intention
to appoint a trustee to administer any Plan; that the Borrower or any ERISA
Affiliate has failed to make a required installment or other payment pursuant
to
Section 412 of the Code with respect to a Plan; or that the Borrower or any
ERISA Affiliate has incurred or will incur (or has been notified in writing
that
it will incur) any liability (including any contingent or secondary liability)
to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the
Code.
(b) Promptly
following any request therefor, on and after the effectiveness of the Pension
Act, the Borrower will deliver to the Administrative Agent copies of (i) any
documents described in Section 101(k) of ERISA that the Borrower and any of
its
Subsidiaries or any ERISA Affiliate may request with respect to any
Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA
that the Borrower and any of its Subsidiaries or any ERISA Affiliate may request
with respect to any Multiemployer Plan; provided that if the Borrower, any
of
its Subsidiaries or any ERISA Affiliate has not requested such documents or
notices from the administrator or sponsor of the applicable Multiemployer Plan,
the Borrower, the applicable Subsidiary(ies) or the ERISA Affiliate(s) shall
promptly make a request for such documents or notices from such administrator
or
sponsor and shall provide copies of such documents and notices promptly after
receipt thereof.
9.8.
Maintenance
of Properties
. The
Borrower will, and will cause each of the Restricted Subsidiaries to, keep
and
maintain all property material to the conduct of its business
in
good
working order and condition, ordinary wear and tear excepted, except to the
extent that the failure to do so could reasonably be expected to have a Material
Adverse Effect.
9.9.
Transactions
with Affiliates
. The
Borrower will conduct, and cause each of the Restricted Subsidiaries to conduct,
all transactions with any of its Affiliates (other than the Borrower and the
Restricted Subsidiaries) on terms that are substantially as favorable to the
Borrower or such Restricted Subsidiary as it would obtain in a comparable
arm’s-length transaction with a Person that is not an Affiliate,
provided
that the foregoing restrictions shall not apply to (a) the payment of customary
fees to the Sponsors for management, consulting and financial services rendered
to the Borrower and the Subsidiaries and customary investment banking fees
paid
to the Sponsors for services rendered to the Borrower and the Subsidiaries
in
connection with divestitures, acquisitions, financings and other transactions,
(b) transactions permitted by
Section 10.6
, (c) the payment of
the Transaction Expenses, (d) the issuance of Stock or Stock Equivalents of
Holdings to the management of the Borrower (or any direct or indirect parent
thereof) or any of its Subsidiaries in connection with the Transactions or
pursuant to arrangements described in
clause (f)
of this
Section
9.9
, (e) loans, advances and other transactions between or among the
Borrower, any Subsidiary or any joint venture (regardless of the form of legal
entity) in which the Borrower or any Subsidiary has invested (and which
Subsidiary or joint venture would not be an Affiliate of the Borrower but for
the Borrower’s or a Subsidiary’s ownership of Stock or Stock Equivalents in such
joint venture or Subsidiary) to the extent permitted under
Section 10
,
(f) employment and severance arrangements between the Borrower and the
Subsidiaries and their respective officers, employees or consultants (including
management and employee benefit plans or agreements, stock option plans and
other compensatory arrangements) in the ordinary course of business, (g)
payments by the Borrower (and any direct or indirect parent thereof) and the
Subsidiaries pursuant to tax sharing agreements among the Borrower (and any
such
parent) and the Subsidiaries on customary terms to the extent attributable
to
the ownership or operation of the Borrower and the Subsidiaries, (h) the payment
of customary fees and reasonable out of pocket costs to, and indemnities
provided on behalf of, directors, managers, consultants, officers and employees
of the Borrower (or, to the extent attributable to the ownership of the Borrower
by such parent, any direct or indirect parent thereof) and the Subsidiaries
in
the ordinary course of business, and (i) transactions pursuant to permitted
agreements in existence on the Closing Date and set forth on
Schedule 9.9
or any amendment thereto to the extent such an amendment (together with any
other amendment or supplemental agreements) is not adverse, taken as a whole,
to
the Lenders in any material respect.
9.10.
End of Fiscal Years; Fiscal Quarters
The
Borrower will, for financial reporting purposes, cause (a) each of its, and
each
of its Subsidiaries’, fiscal years to end on the Friday closest to January 31 of
each year and (b) each of its, and each of its Subsidiaries’, fiscal quarters to
end on dates consistent with such fiscal year-end and the Borrower’s past
practice;
provided
,
however
, that the Borrower may, upon written
notice to the Administrative Agent change the financial reporting convention
specified above to any other financial reporting convention reasonably
acceptable to the Administrative Agent, in which case the Borrower and the
Administrative Agent will, and are hereby authorized by the Lenders to, make
any
adjustments to this Agreement that are necessary in order to reflect such change
in financial reporting.
9.11.
Additional Guarantors and Grantors
. Except
as otherwise provided in
Section 10.1(j)
and subject to any applicable
limitations set forth in the Security Documents, the Borrower will cause each
direct or indirect Domestic Subsidiary (excluding any Excluded Subsidiary)
formed or otherwise purchased or acquired after the date hereof (including
pursuant to a Permitted Acquisition) and each other Domestic Subsidiary that
ceases to constitute an Excluded Subsidiary to, within 30 days from the date
of
such formation, acquisition or cessation, as applicable (or such longer period
as the Administrative Agent may agree in its reasonable discretion), execute
a
supplement to each of the Guarantee, the Pledge Agreement and the Security
Agreement in order to become a Guarantor under such Guarantee and a grantor
under such Security Documents or, to the extent reasonably requested by the
Collateral Agent, enter into a new Security Document substantially consistent
with the analogous existing Security Documents and otherwise in form and
substance reasonably satisfactory to such Collateral Agent and take all other
action reasonably requested by the Collateral Agent to grant a perfected
security interest in its assets to substantially the same extent as created
by
the Credit Parties on the Closing Date (including actions required pursuant
to
Section 9.14(d)
).
9.12.
Pledge
of Additional Stock and Evidence of Indebtedness
.
(a) Except
as otherwise provided in
Section 10.1(j)
and subject to any
applicable limitations set forth in the Security Documents or with respect
to
which, in the reasonable judgment of the Administrative Agent (confirmed in
writing by notice to the Borrower), the cost or other consequences (including
any adverse tax consequences) of doing so shall be excessive in view of the
benefits to be obtained by the Lenders therefrom, the Borrower will cause (i)
all certificates representing Stock and Stock Equivalents of any Subsidiary
(other than (x) any Excluded Stock and Stock Equivalents, (y) any Stock and
Stock Equivalents issued by any Subsidiary for so long as such Subsidiary does
not (on a consolidated basis with its Restricted Subsidiaries) have property,
plant and equipment with a book value in excess of $5,000,000 or a contribution
to Consolidated EBITDA for any four fiscal quarter period that includes any
date
on or after the Closing Date in excess of $10,000,000 and (z) any Stock and
Stock Equivalents issued by ARIC) held directly by the Borrower or any
Guarantor, (ii) all evidences of Indebtedness in excess of $5,000,000 received
by the Borrower or any of the Guarantors in connection with any disposition
of
assets pursuant to
Section 10.4(b)
and (iii) any promissory notes
executed after the date hereof evidencing Indebtedness in excess of $5,000,000
of the Borrower or any Subsidiary that is owing to the Borrower or any
Guarantor, in each case, to be delivered to the Collateral Agent as security
for
the Obligations under the Pledge Agreement.
(b) The
Borrower agrees that all Indebtedness in excess of $5,000,000 of the Borrower
or
any Subsidiary that is owing to any Credit Party shall be evidenced by one
or
more promissory notes.
9.13.
Use
of Proceeds
.
(a) The
Borrower will use the proceeds of all Tranche B Term Loans to effect the
Transactions.
(b) The
Borrower will use the proceeds of any New Term Loans for general corporate
purposes (including Permitted Acquisitions).
9.14.
Further Assurances
.
(a) The
Borrower will, and will cause each other Credit Party to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents)
that
may be required under any applicable law, or that the Collateral Agent or the
Required Lenders may reasonably request, in order to grant, preserve, protect
and perfect the validity and priority of the security interests created or
intended to be created by the applicable Security Documents, all at the expense
of the Borrower and the Restricted Subsidiaries.
(b) Except
with respect to which, in the reasonable judgment of the Administrative Agent
(confirmed in writing by written notice to the Borrower), the cost or other
consequences (including any tax consequence) of doing so shall be excessive
in
view of the benefits to be obtained by the Lenders therefrom and subject to
applicable limitations set forth in the Security Documents, if any assets
(including any Real Estate or improvements thereto or any interest therein
but
excluding Stock and Stock Equivalents of any Subsidiary) with a book value
or
fair market value in excess of $5,000,000 are acquired by the Borrower or any
other Credit Party after the Closing Date (other than assets constituting
Collateral under a Security Document that become subject to the Lien of the
applicable Security Document upon acquisition thereof) that are of a nature
secured by a Security Document, the Borrower will notify the Collateral Agent,
and, if requested by the Collateral Agent, the Borrower will cause such assets
to be subjected to a Lien securing the applicable Obligations and will take,
and
cause the other applicable Credit Parties to take, such actions as shall be
necessary or reasonably requested by the Collateral Agent to grant and perfect
such Liens consistent with the applicable requirements of the Security
Documents, including actions described in
clause (a)
of this
Section
9.14
.
(c) Any
Mortgage delivered to the Collateral Agent in accordance with the preceding
clause (b)
shall be accompanied by (x) a policy or policies (or
an unconditional binding commitment therefor) of title insurance issued by
a
nationally recognized title insurance company insuring the Lien of each Mortgage
as a valid Lien (with the priority described therein) on the Mortgaged Property
described therein, free of any other Liens except as expressly permitted by
Section 10.2
, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent may reasonably request and (y) an opinion
of
local counsel to the mortgagor in form and substance reasonably acceptable
to
the Collateral Agent.
(d) The
Borrower agrees that it will, or will cause its relevant Subsidiaries to,
complete each of the actions described on
Schedule 9.14(d)
as soon
as commercially reasonable and by no later than the date set forth in
Schedule 9.14(d)
with respect to such action or such later date as the
Administrative Agent may reasonably agree.
SECTION
10.
Negative
Covenants
The
Borrower hereby covenants and agrees that on the Closing Date (immediately
after
consummation of the Merger) and thereafter, until the Commitments have
terminated and the Loans, together with interest, fees and all other Obligations
incurred hereunder (other than contingent indemnity obligations), are paid
in
full:
10.1.
Limitation
on Indebtedness
. The
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Indebtedness,
provided
that the Borrower and any Restricted Subsidiary
(other than a Restricted Foreign Subsidiary) may incur Indebtedness (and all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest with regard to such Indebtedness),
if immediately before and after giving effect to such incurrence, (x) no Default
shall have occurred and be continuing and (y) the Borrower shall be in
compliance, on a Pro Forma Basis, with the Senior Secured Incurrence Test,
provided
,
further
, that Restricted Subsidiaries that are not
Guarantors may not incur Indebtedness pursuant to the foregoing proviso in
an
aggregate principal amount outstanding at any time, when combined with the
total
amount of Indebtedness incurred by Restricted Subsidiaries that are not
Guarantors pursuant to
Section 10.1(d)
,
(j)
,
(k)
and
(n)
, exceeding $125,000,000.
Notwithstanding
the foregoing, the limitations set forth in the immediately preceding paragraph
shall not apply to any of the following items:
(a) (x)
Indebtedness arising under the Credit Documents and (y) Indebtedness in an
aggregate principal amount not to exceed $1,125,000,000 at any time outstanding
under the ABL Facility (plus additional Indebtedness thereunder or under any
amendment thereto, which does not exceed, in the aggregate, the difference
of
(i) $325,000,000 less (ii) the aggregate principal amount of all New Term Loans
made pursuant to
Section 2.14
);
(b) subject
to compliance with
Section 10.5
, Indebtedness of the Borrower or any
Restricted Subsidiary owed to the Borrower or any Restricted Subsidiary;
provided
that all such Indebtedness of any Credit Party owed to any
Person that is not a Credit Party shall be subordinated to the Obligations
on
terms reasonably satisfactory to the Administrative Agent;
(c) Indebtedness
in respect of any bankers’ acceptance, bank guarantees, letter of credit,
warehouse receipt or similar facilities entered into in the ordinary course
of
business (including in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation
claims);
(d) subject
to compliance with
Section 10.5
, Guarantee Obligations incurred by
(i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or
other Restricted Subsidiaries that is permitted to be incurred under this
Agreement (except that a Restricted Subsidiary that is not a Credit Party may
not, by virtue of this
Section
10.1(d)
guarantee Indebtedness that such Restricted Subsidiary could not otherwise
incur
under this
Section 10.1
) and (ii) the Borrower in respect of
Indebtedness of Restricted Subsidiaries that is permitted to be incurred under
this Agreement;
provided
that (i) if the Indebtedness being guaranteed
under this
Section 10.1(d)
is subordinated to the Obligations, such
Guarantee Obligations shall be subordinated to the Guarantee of the Obligations
on terms at least as favorable to the Lenders as those contained in the
subordination of such Indebtedness, (ii) no guarantee by any Restricted
Subsidiary of the ABL Facility, Senior Notes, Senior Subordinated Notes or
any
Permitted Additional Debt shall be permitted unless such Restricted Subsidiary
shall have also provided a guarantee of the Obligations substantially on the
terms set forth in the Guarantee and (iii) the aggregate amount of Guarantee
Obligations incurred by Credit Parties under this
clause (d)
in respect
of obligations owed by Persons that are not Credit Parties and the aggregate
amount of Guarantee Obligations incurred by Restricted Subsidiaries that are
not
Guarantors under this
clause (d)
, when combined with the total amount of
Indebtedness incurred by Restricted Subsidiaries that are not Guarantors
pursuant to the proviso in the first paragraph of this
Section 10.1
and
Section 10.1
(j)
,
(k)
and
(n)
, shall not exceed
$125,000,000 at any time outstanding;
(e) Guarantee
Obligations (i) incurred in the ordinary course of business in respect of
obligations of (or to) suppliers, customers, franchisees, lessors and licensees
or (ii) otherwise constituting Investments permitted by
Sections 10.5(d)
,
10.5(g)
,
10.5(i)
,
10.5(q)
,
10.5(r)
,
10.5(t)
and
10.5(v)
;
(f) (i)
Indebtedness (including Indebtedness arising under Capital Leases) incurred
within 270 days of the acquisition, construction, repair, replacement,
expansion or improvement of fixed or capital assets to finance the acquisition,
construction, repair, replacement expansion, or improvement of such fixed or
capital assets, (ii) Indebtedness arising under Capital Leases entered into
in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising
under Capital Leases, other than Capital Leases in effect on the date hereof
and
Capital Leases entered into pursuant to
subclauses (i)
and
(ii)
above,
provided
, that the aggregate amount of Indebtedness
incurred pursuant to this
clause (iii)
at any time outstanding shall
not exceed $75,000,000 and (iv) any modification, replacement, refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause
(i)
,
(ii)
or
(iii)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, the principal amount thereof
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal
or extension;
(g) Indebtedness
outstanding on the date hereof listed on
Schedule 10.1
and any
modification, replacement, refinancing, refunding, renewal or extension thereof;
provided
that except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing,
refunding, renewal or extension, (x) the principal amount thereof does not
exceed the principal amount thereof outstanding immediately prior to such
modification, replacement, refinancing, refunding, renewal or
extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal
or extension plus an amount equal to any existing commitment unutilized and
letters of credit undrawn thereunder, (y) the direct and contingent obligors
with respect to such Indebtedness are not changed and (z) to the extent such
Indebtedness being modified, replaced, refinanced, refunded, renewed or extended
constitutes Indebtedness owed to the Borrower or any Restricted Subsidiary,
the
creditor with respect to such Indebtedness is not changed;
(h) Indebtedness
in respect of Hedge Agreements;
(i) Indebtedness
in respect of (x) the Senior Notes in an aggregate principal amount not to
exceed $1,175,000,000 and (y) the Senior Subordinated Notes in an aggregate
principal amount not to exceed $725,000,000
plus
the PIK Interest
Amount;
(j) (i)
Indebtedness of a Person or Indebtedness attaching to assets of a Person that,
in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary
that survives a merger with such Person) or Indebtedness attaching to assets
that are acquired by the Borrower or any Restricted Subsidiary, in each case
after the Closing Date as the result of a Permitted Acquisition;
provided
that
(w) such
Indebtedness existed at the time such Person became a Restricted Subsidiary
or
at the time such assets were acquired and, in each case, was not created in
anticipation thereof,
(x) such
Indebtedness is not guaranteed in any respect by the Borrower or any Restricted
Subsidiary (other than by any such Person that so becomes a Restricted
Subsidiary or is the survivor of a merger with such Person or any of its
Subsidiaries), and
(y) (A)
the Stock and Stock Equivalents of such Person are pledged to secure the
Obligations, to the extent required under
Section 9.12
, (B) such Person
executes a supplement to the applicable Guarantee and Security Documents (or
alternative guarantee and security agreements in relation to the Obligations
reasonably acceptable to the Collateral Agent) to the extent required under
Section 9.11
or
9.12
, as applicable and (C) to the extent the
assets of such Person that are required to become Collateral under
Section
9.11
or
9.12
are subject to a Lien securing such Indebtedness, such
Lien shall be subject to an intercreditor agreement on terms and conditions
reasonably satisfactory to the Administrative Agent providing that such Lien
shall rank junior to the Lien securing the Obligations;
provided
that the
requirements of this
subclause (y)
shall not apply to (I) an aggregate
amount at any time outstanding of up to $25,000,000 of the aggregate principal
amount of such Indebtedness (and modifications, replacements, refinancings,
refunding, renewals and extensions thereof pursuant to
subclause (ii)
below) and (II) any Indebtedness of the type that could have been incurred
under
Section 10.1(f)
.
(ii)
any
modification, replacement,
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above,
provided
that, except to the extent otherwise
expressly permitted hereunder, (x) the principal amount of any such Indebtedness
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal
or extension plus an amount equal to any existing commitment unutilized and
letters of credit undrawn thereunder and (y) the direct and contingent obligors
with respect to such Indebtedness are not changed; and
(iii)
the
aggregate amount of Indebtedness
incurred by Restricted Subsidiaries that are not Guarantors under this
clause
(j)
, when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Guarantors pursuant to the proviso in
the
first paragraph of this
Section 10.1
and
Section 10.1(d)
,
(k)
and
(n)
, shall not exceed $125,000,000 at any time
outstanding;
(k) (i)
Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance
a
Permitted Acquisition;
provided
that (x) the Borrower or another Credit
Party pledges the Stock and Stock Equivalents of such acquired Person to secure
the Obligations to the extent required under
Section 9.12
, (y) such
acquired Person executes a supplement to the applicable Guarantee and Security
Documents (or alternative guarantee and security arrangements in relation to
the
Obligations reasonably acceptable to the Collateral Agent) to the extent
required under
Section 9.11
or
9.12
, as applicable and (z) to the
extent the assets of such acquired Person that are required to become Collateral
under
Section 9.11
or
9.12
are subject to a Lien securing such
Indebtedness, such Lien becomes subject to intercreditor arrangements reasonably
satisfactory to the Administrative Agent providing that such Lien shall rank
junior to the Lien securing the Obligations;
(ii)
any
modification, replacement,
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above,
provided
that, except to the extent otherwise
expressly permitted hereunder, (x) the principal amount of any such Indebtedness
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal
or extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed; and
(iii)
notwithstanding
the foregoing,
Indebtedness may only be incurred pursuant to this
clause (k)
to the
extent that either (A) both immediately before and aftergiving effect to such
incurrence, the Senior Secured Incurrence Test, on a Pro Forma Basis, shall
be
satisfied or (B) the Consolidated EBITDA to Consolidated Interest Expense Ratio,
on a Pro Forma Basis, shall be greater than immediately prior to such
incurrence;
provided
that Restricted Subsidiaries that are not Guarantors
may not incur
Indebtedness
pursuant to this
clause (k)
in an aggregate principal amount, when
combined with the total amount of Indebtedness incurred by Restricted
Subsidiaries that are not Guarantors pursuant to the proviso in the first
paragraph of this
Section 10.1
and
Section 10.1(d)
,
(j)
and
(n)
, at any time outstanding in excess of $125,000,000
at any time
outstanding;
(l)
Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety
bonds and completion guarantees and similar obligations not in connection with
money borrowed, in each case provided in the ordinary course of business or
consistent with past practice, including those incurred to secure health, safety
and environmental obligations in the ordinary course of business or consistent
with past practice;
(m) (i) Indebtedness
incurred in connection with any Permitted Sale Leaseback (
provided
that
the Net Cash Proceeds thereof are promptly applied to the prepayment of the
Term
Loans to the extent required by
Section 5.2
) and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above,
provided
that, except to the extent
otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension and
(y) the direct and contingent obligors with respect to such Indebtedness
are not changed;
(n) (i) additional
Indebtedness and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in
subclause (i)
above;
provided
that the aggregate amount of Indebtedness incurred and remaining outstanding
pursuant to this
clause (n)
shall not at any time exceed the greater
of (A) $150,000,000 and (B) 2.00% of Consolidated Total Assets (determined
at
the time of incurrence);
provided
further that the aggregate amount of
Indebtedness incurred by Restricted Subsidiaries that are not Guarantors under
this
clause (n)
, when combined with the total amount of Indebtedness
incurred by Restricted Subsidiaries that are not Guarantors pursuant to the
proviso in the first paragraph of this
Section 10.1
and
Section
10.1(d)
,
(j)
and
(k)
, shall not exceed $125,000,000 at any
time outstanding;
(o) Indebtedness
in respect of Permitted Additional Debt to the extent that the Net Cash Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Term Loans in accordance with
Section 5.2
, (including any
refinancing, refunding, renewal or extension of any such Indebtedness that,
itself, constitutes Permitted Additional Debt);
(p) Indebtedness
in respect of overdraft facilities, employee credit card programs, netting
services, automatic clearinghouse arrangements and other cash management and
similar arrangements in the ordinary course of business;
(q) Indebtedness
incurred in the ordinary course of business in respect of obligations of the
Borrower or any Restricted Subsidiary to pay the deferred purchase price of
goods or services or progress payments in connection with such goods and
services;
(r) Indebtedness
arising from agreements of the Borrower or any Restricted Subsidiary providing
for indemnification, adjustment of purchase price or similar obligations
(including earn-outs), in each case entered into in connection with Permitted
Acquisitions, other Investments and the disposition of any business, assets
or
Stock permitted hereunder;
(s) Indebtedness
of the Borrower or any Restricted Subsidiary consisting of (i) obligations
to
pay insurance premiums or (ii) take or pay obligations contained in supply
agreements, in each case arising in the ordinary course of
business;
(t) Indebtedness
representing deferred compensation to employees of the Borrower (or, to the
extent such work is done for the Borrower or its Subsidiaries, any direct or
indirect parent thereof) and the Restricted Subsidiaries incurred in the
ordinary course of business;
(u) Indebtedness
consisting of promissory notes issued by the Borrower or any Guarantor to
current or former officers, managers, consultants, directors and employees
(or
their respective spouses, former spouses, successors, executors, administrators,
heirs, legatees or distributees) to finance the purchase or redemption of Stock
or Stock Equivalents of the Borrower (or any direct or indirect parent thereof)
permitted by
Section 10.6(b)
;
(v) Indebtedness
consisting of obligations of the Borrower and the Restricted Subsidiaries under
deferred compensation or other similar arrangements incurred by such Person
in
connection with the Transactions and Permitted Acquisitions or any other
Investment permitted hereunder;
(w) [Reserved];
(x) additional
Indebtedness of Foreign Subsidiaries in an aggregate principal amount that
at
the time of incurrence does not cause the aggregate principal amount of
Indebtedness incurred in reliance on this
clause (x)
outstanding at any
time to exceed 5.00% of Total Assets of the Foreign Subsidiaries, taken as
a
whole (determined at the time of incurrence);
(y) Indebtedness
in respect of Permitted Receivables Financings;
(z) Indebtedness
of the Borrower or any Restricted Subsidiary to any joint venture (regardless
of
the form of legal entity) that is not a Subsidiary arising in the ordinary
course of business in connection with the cash management operations (including
with respect to intercompany self-insurance arrangements) of the Borrower and
its Restricted Subsidiaries; and
(aa) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
clauses (a) through (y) above.
For
purposes of determining compliance
with this
Section 10.1
, in the event that an item of Indebtedness meets
the criteria of more than one of the categories of Indebtedness described in
clauses (a) through (z) above, the Borrower shall, in its sole discretion,
classify and reclassify or later divide, classify or reclassify such item of
Indebtedness (or any portion thereof) and will only be required to include
the
amount and type of such Indebtedness in one or more of the above clauses;
provided
that (i) all Indebtedness outstanding under the Credit
Documents will be deemed at all times to have been incurred in reliance only
on
the exception in
clause (a)
of
Section 10.1
, (ii) all
Indebtedness outstanding under the ABL Facility will be deemed at all times
to
have been incurred in reliance only on the exception of
clause (a)
of
Section 10.1
and (iii) all Indebtedness outstanding under the Notes
will be deemed at all times to have been incurred in reliance only on the
exception of
clause (i)
of
Section 10.1
.
10.2.
Limitation
on Liens
. The
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon any property or assets
of
any kind (real or personal, tangible or intangible) of the Borrower or any
Restricted Subsidiary, whether now owned or hereafter acquired,
except:
(a) Liens
arising under the Credit Documents;
(b) Liens
on the ABL Collateral securing the “Obligations” under and as defined in the ABL
Documents with respect to the Indebtedness permitted pursuant to
Section
10.1(a)
and any related obligations with respect to cash management and
hedging arrangements contemplated thereby;
(c) [Reserved];
(d) Permitted
Liens;
(e) (i)
Liens securing Indebtedness permitted pursuant to
Section 10.1(f)
,
provided
that (x) such Liens attach concurrently with or within two
hundred and seventy (270) days after completion of the acquisition,
construction, repair, replacement or improvement (as applicable) of the property
subject to such Liens and (y) such Liens attach at all times only to the assets
so financed except (1) for accessions to the property financed with the proceeds
of such Indebtedness and the proceeds and the products thereof and (2) that
individual financings of equipment provided by one lender may be cross
collateralized to other financings of equipment provided by such lender,
and, and (ii) Liens on the assets of a Restricted Subsidiary that is not a
Credit Party securing Indebtedness permitted pursuant to
Section 10.1(n)
,
(p)
, or
(x)
;
(f) Liens
existing on the date hereof,
provided
that any Lien securing Indebtedness
in excess of (x) $2,000,000 individually or (y) $5,000,000 in the aggregate
(when taken together with all other Liens securing obligations outstanding
in
reliance on this clause (f) that are not listed on
Schedule 10.2
) shall
only be permitted to the extent such Lien is listed on
Schedule
10.2
;
(g) the
modification, replacement, extension or renewal of any Lien permitted by
clauses (a)
through
(f)
and
clauses (h)
and
(v)
of
this
Section 10.2
upon or in the same
assets
theretofore subject to such Lien (or upon or in after-acquired property that
is
affixed or incorporated into the property covered by such Lien or any proceeds
or products thereof) or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor except to the extent
otherwise permitted hereunder) of the Indebtedness secured thereby; to the
extent such replacement, extension or renewal is permitted by
Section
10.1
;
(h) Liens
existing on the assets of any Person that becomes a Restricted Subsidiary (or
is
a Restricted Subsidiary that survives a merger with such Person) pursuant to
a
Permitted Acquisition or other permitted Investment, or existing on assets
acquired after the Closing Date to the extent the Liens on such assets secure
Indebtedness permitted by
Section 10.1(j)
;
provided
that such
Liens (i) are not created or incurred in connection with, or in contemplation
of, such Person becoming such a Restricted Subsidiary or such assets being
acquired and (ii) attach at all times only to the same assets to which such
Liens attached (and after-acquired property that is affixed or incorporated
into
the property covered by such Lien), and secure only the same Indebtedness or
obligations that such Liens secured, immediately prior to such Permitted
Acquisition and any modification, replacement, refinancing, refunding, renewal
or extension thereof permitted by
Section 10.1(j)
;
(i) (i) Liens
placed on the Stock and Stock Equivalents of any Restricted Subsidiary acquired
pursuant to a Permitted Acquisition to secure Indebtedness incurred pursuant
to
Section 10.1(k)
in connection with such Permitted Acquisition and
(ii) Liens placed upon the assets of such Restricted Subsidiary to secure a
guarantee by, or Indebtedness of, such Restricted Subsidiary of any Indebtedness
of the Borrower or any other Restricted Subsidiary incurred pursuant to
Section 10.1(k)
;
provided
that (x) the Borrower shall be in
compliance, on a Pro Forma Basis, with the Senior Secured Incurrence Test at
the
time of creation of such Liens and (ii) at the time such Indebtedness is
incurred, the holders of such Indebtedness shall have entered into intercreditor
arrangements reasonably satisfactory to the Administrative Agent providing
that
the Liens securing such Indebtedness shall rank junior to the Lien securing
the
Obligations;
(j) Liens
securing Indebtedness or other obligations (i) of the Borrower or a Restricted
Subsidiary in favor of a Credit Party; and (ii) of any Restricted Subsidiary
that is not a Credit Party in favor of any Restricted Subsidiary that is not
a
Credit Party;
(k) Liens
(i) of a collecting bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course
of business; and (iii) in favor of a banking institution arising as a matter
of
law encumbering deposits (including the right of set-off);
(l) Liens
(i) on cash advances in favor of the seller of any property to be acquired
in an
Investment permitted pursuant to
Section 10.5
to be applied against the
purchase price for such Investment, and (ii) consisting of an agreement to
sell,
transfer, lease or otherwise dispose of any property in a transaction permitted
under
Section 10.4
,
in
each
case, solely to the extent such Investment or sale, disposition, transfer or
lease, as the case may be, would have been permitted on the date of the creation
of such Lien;
(m) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale or purchase of goods entered into by the Borrower or
any
of the Restricted Subsidiaries in the ordinary course of business permitted
by
this Agreement;
(n) Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under
Section 10.5
;
(o) Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;
(p) Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower
or any Restricted Subsidiary to permit satisfaction of overdraft or similar
obligations incurred in the ordinary course of business of the Borrower and
the
Restricted Subsidiaries or (iii) relating to purchase orders and other
agreements entered into with customers of the Borrower or any Restricted
Subsidiary in the ordinary course of business;
(q) Liens
solely on any cash earnest money deposits made by the Borrower or any of the
Restricted Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;
(r) Liens
on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;
(s) Liens
on specific items of inventory or other goods and the proceeds thereof securing
such Person’s obligations in respect of documentary letters of credit or
banker’s acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or
goods;
(t) Liens
securing letters of credit in a currency other than Dollars permitted by
Section 10.1(c)
in an aggregate amount at any time outstanding not to
exceed $25,000,000;
(u) additional
Liens so long as the aggregate principal amount of the obligations secured
thereby at any time outstanding does not exceed $100,000,000;
provided
that, to the extent that (x) the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio is less than 3.50 to 1.00 and (y) the corporate credit
rating of the Borrower by S&P is B or better and the corporate family rating
of the Borrower by Moody’s is B2 or better (in each case with no negative
outlook), then the amounts of obligations secured by additional Liens permitted
pursuant to this
clause (u)
shall not exceed the greater of $100,000,000
and 1.25% of Consolidated Total Assets (as determined at the date of
incurrence); and
(v) additional
Liens securing Indebtedness permitted under the first paragraph of
Section
10.1
,
provided
that to the extent such Liens are contemplated to be
on assets that constitute Collateral, at the time such Indebtedness is incurred,
the holders of such Indebtedness shall have entered into intercreditor
arrangements reasonably satisfactory to the Administrative Agent providing
that
the Liens securing such Indebtedness shall rank junior to the Lien securing
the
Obligations.
10.3.
Limitation
on Fundamental Changes
. The
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
enter into any merger, consolidation or amalgamation, or liquidate, wind up
or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all its
business units, assets or other properties, except that:
(a) so
long as (i) no Default or Event of Default has occurred and is continuing or
would result therefrom and (ii) both before and after giving effect to such
transaction the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
shall, on a Pro Forma Basis, be equal to or less than 4.25 to 1.00, any
Subsidiary of the Borrower or any other Person may be merged, amalgamated or
consolidated with or into the Borrower,
provided
that (A) the Borrower
shall be the continuing or surviving corporation or (B) if the Person
formed by or surviving any such merger, amalgamation or consolidation is not
the
Borrower (such other Person, the “
Successor Borrower
”), (1) the
Successor Borrower shall be an entity organized or existing under the laws
of
the United States, any state thereof, the District of Columbia or any territory
thereof, (2) the Successor Borrower shall expressly assume all the obligations
of the Borrower under this Agreement and the other Credit Documents pursuant
to
a supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (3) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Guarantee
confirmed that its guarantee thereunder shall apply to any Successor Borrower’s
obligations under this Agreement, (4) each Subsidiary grantor and each
Subsidiary pledgor, unless it is the other party to such merger or
consolidation, shall have by a supplement to the Security Agreement or the
Pledge Agreement, as applicable, affirmed that its obligations thereunder shall
apply to its Guarantee as reaffirmed pursuant to
clause (3)
, (5) each
mortgagor of a Mortgaged Property, unless it is the other party to such merger
or consolidation, shall have affirmed that its obligations under the applicable
Mortgage shall apply to its Guarantee as reaffirmed pursuant to
clause
(3)
and (6) the Successor Borrower shall have delivered to the
Administrative Agent (x) an officer’s certificate stating that such merger or
consolidation and such supplements preserve the enforceability of the Guarantee
and the perfection and priority of the Liens under the applicable Security
Documents and (y) if requested by the Administrative Agent, an opinion of
counsel to the effect that such merger or consolidation does not violate this
Agreement or any other Credit Document and that the provisions set forth in
the
preceding
clauses (3)
through
(5)
preserve the enforceability of
the Guarantee and the perfection and priority of the Liens created under the
applicable Security Documents (it being understood that if the foregoing are
satisfied, the Successor Borrower will succeed to, and be substituted for,
the
Borrower under this Agreement);
(b) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, any Subsidiary of the Borrower or any other Person (in each
case, other than the Borrower) may be merged, amalgamated or consolidated with
or into any one or more Subsidiaries of the Borrower,
provided
that (i)
in the case of any merger, amalgamation or consolidation involving one or more
Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the
continuing or surviving Person or (B) the Borrower shall take all steps
necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become
a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or
consolidation involving one or more Guarantors, a Guarantor shall be the
continuing or surviving Person or the Person formed by or surviving any such
merger, amalgamation or consolidation (if other than a Guarantor) shall execute
a supplement to the Guarantee Agreement and the relevant Security Documents
in
form and substance reasonably satisfactory to the Administrative Agent in order
to become a Guarantor and pledgor, mortgagor and grantor, as applicable,
thereunder for the benefit of the Secured Parties, (iii) no Default or Event
of
Default has occurred and is continuing or would result from the consummation
of
such merger, amalgamation or consolidation and (iv) Borrower shall have
delivered to the Administrative Agent an officers’ certificate stating that such
merger, amalgamation or consolidation and any such supplements to any Security
Document preserve the enforceability of the Guarantees and the perfection and
priority of the Liens under the applicable Security Documents;
(c) the
Merger may be consummated;
(d) any
Restricted Subsidiary that is not a Credit Party may sell, lease, transfer
or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other Restricted Subsidiary;
(e) any
Subsidiary may sell, lease, transfer or otherwise dispose of any or all of
its
assets (upon voluntary liquidation or otherwise) to any Credit Party;
provided
that the consideration for any such disposition by any Person
other than a Guarantor shall not exceed the fair value of such
assets;
(f) any
Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines
in good faith that such liquidation or dissolution is in the best interests
of
the Borrower and is not materially disadvantageous to the Lenders and (ii)
to
the extent such Restricted Subsidiary is a Credit Party, any assets or business
of such Restricted Subsidiary not otherwise disposed of or transferred in
accordance with
Section 10.4
or
10.5
or, in the case of any such
business, discontinued, shall be transferred to, or otherwise owned or conducted
by, a Credit Party after giving effect to such liquidation or dissolution;
and
(g) to
the extent that no Default or Event of Default would result from the
consummation of such disposition, the Borrower and the Restricted Subsidiaries
may consummate a merger, dissolution, liquidation, consolidation or disposition,
the purpose of which is to effect a disposition permitted pursuant to
Section 10.4.
10.4.
Limitation
on Sale of Assets
. The
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
(i) convey, sell, lease, assign, transfer or otherwise dispose of any of
its property, business or assets (including receivables and leasehold
interests), whether now owned or hereafter acquired or (ii) sell to any
Person (other than the Borrower or a Guarantor) any shares owned by it of any
Restricted Subsidiary’s Stock and Stock Equivalents, except that:
(a) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose
of (i) inventory, used or surplus equipment, vehicles and other assets in the
ordinary course of business, (ii) Permitted Investments and Investment Grade
Securities and (iii) assets for the purposes of charitable contributions or
similar gifts to the extent such assets are not material to the ability of
the
Borrower and its Restricted Subsidiaries, taken as a whole, to conduct its
business in the ordinary course;
(b) the
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose
of assets (each of the foregoing, a “
Disposition
”), excluding
any Disposition of accounts receivable except in connection with the Disposition
of any business to which such accounts receivable relate, for fair value,
provided
that (i) to the extent required, the Net Cash Proceeds thereof
to the Borrower and the Restricted Subsidiaries are promptly applied to the
prepayment of Term Loans as provided for in
Section 5.2
, (ii) after
giving effect to any such sale, transfer or disposition, no Default or Event
of
Default shall have occurred and be continuing, (iii) with respect to any
Disposition pursuant to this
clause (b)
for a purchase price in excess of
$7,500,000, the Person making such Disposition shall receive not less than
75%
of such consideration in the form of cash or Permitted Investments;
provided
that for the purposes of this
subclause (iii)
the
following shall be deemed to be cash: (A) any liabilities (as shown on the
Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided
hereunder or in the footnotes thereto) of the Borrower or such Restricted
Subsidiary, other than liabilities that are by their terms (1) subordinated
to
the payment in cash of the Obligations or (2) not secured by the assets that
are
the subject of such Disposition, that are assumed by the transferee with respect
to the applicable Disposition and for which the Borrower and all of the
Restricted Subsidiaries shall have been validly released by all applicable
creditors in writing, (B) any securities received by the Person making such
Disposition from the purchaser that are converted by such Person into cash
(to
the extent of the cash received) within 180 days following the closing of the
applicable Disposition, (C) any Designated Non-Cash Consideration received
by the Person making such Disposition having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration received
pursuant to this
Section 10.4(b)
that is at that time outstanding, not in
excess of the greater of (x) $80,000,000 and (y) 1.0% of Consolidated Total
Assets at the time of the receipt of such Designated Non-Cash Consideration,
with the fair market value of each item of Designated Non-Cash Consideration
being measured at the time received and without giving effect to subsequent
changes in value, (iv) any non-cash proceeds received are pledged to the
Collateral Agent to the extent required under
Section 9.12
; and (v) to
the extent (A) the corporate credit rating of the Borrower by S&P is not B
or better and the corporate family rating of the Borrower by Moody’s is not B2
or better (in each case with no negative
outlook)
or (B) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is
equal to or greater than 3.50 to 1.00, the aggregate consideration for all
Dispositions made pursuant to this
clause (b)
shall not exceed the
greater of (1) $150,000,000 and (2) 2.5% of Consolidated Total Assets for all
such transactions consummated after the Closing Date;
(c) (i)
the Borrower and the Restricted Subsidiaries may make Dispositions to the
Borrower or any other Credit Party and (ii) any Restricted Subsidiary that
is
not a Credit Party may make Dispositions to the Borrower or any other
Subsidiary,
provided
that with respect to any such Dispositions, such
sale, transfer or disposition shall be for fair value;
(d) the
Borrower and any Restricted Subsidiary may effect any transaction permitted
by
Section 10.3
,
10.5
or
10.6
;
(e) the
Borrower and the Restricted Subsidiaries may lease, sublease, license or
sublicense (on a non-exclusive basis with respect to any intellectual property)
real, personal or intellectual property in the ordinary course of
business;
(f) Dispositions
of property (including like-kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are applied to the purchase
price of such replacement property, in each case under Section 1031 of the
Code
or otherwise;
(g) Dispositions
of property pursuant to Existing DC Sale Leaseback transactions;
(h) Dispositions
of Investments in joint ventures (regardless of the form of legal entity) to
the
extent required by, or made pursuant to, customary buy/sell arrangements between
the joint venture parties set forth in joint venture arrangements and similar
binding arrangements;
(i) customary
Dispositions in connection with any Permitted Receivables
Financing;
(j) Dispositions
listed on
Schedule 10.4
(“
Scheduled
Dispositions
”);
(k) transfers
of property subject to a Casualty Event or in connection with any condemnation
proceeding upon receipt of the Net Cash Proceeds of such Casualty Event or
condemnation proceeding;
(l) Dispositions
of accounts receivable in connection with the collection or compromise
thereof;
(m) the
unwinding of any Hedge Agreement;
(n) the
Borrower and the Restricted Subsidiaries may make Dispositions, (excluding
any
Disposition of accounts receivable except in connection with the
Disposition
of any business to which such accounts receivable relate), for fair value to
the
extent that (i) the aggregate consideration for all such Dispositions
consummated after the Closing Date does not exceed 3.5% of Consolidated Total
Assets and (ii) the Net Cash Proceeds of any such Disposition are promptly
applied to the prepayment of Term Loans as provided in
Section 5.2
without giving effect to any reinvestment rights under clause (iv) of the
definition of “Net Cash Proceeds”;
(o) Disposition
of any asset between or among the Borrower and/or its Restricted Subsidiaries
as
a substantially concurrent interim Disposition in connection with a Disposition
otherwise permitted pursuant to
clauses (a)
through (
n
)
above.
10.5.
Limitation
on Investments
. The
Borrower will not, and will not permit any of the Restricted Subsidiaries,
to
make any Investment except:
(a) extensions
of trade credit and asset purchases in the ordinary course of
business;
(b) Investments
that were Permitted Investments when such Investments were made or Investments
in Investment Grade Securities;
(c) loans
and advances to officers, directors and employees of the Borrower (or any direct
or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and
customary business-related travel, entertainment, relocation and analogous
ordinary business purposes (including employee payroll advances), (ii) in
connection with such Person’s purchase of Stock or Stock Equivalents of the
Borrower (or any direct or indirect parent thereof;
provided
that, to the
extent such loans and advances are made in cash, the amount of such loans and
advances used to acquire such Stock or Stock Equivalents shall be contributed
to
the Borrower in cash) and (iii) for purposes not described in the foregoing
subclauses (i)
and
(ii)
;
provided
that the aggregate
principal amount outstanding pursuant to
subclause (iii)
shall not exceed
$10,000,000;
(d) Investments
existing on, or made pursuant to legally binding written commitments in
existence on, the date hereof as set forth on
Schedule 10.5
and any
extensions, renewals or reinvestments thereof, so long as the amount of any
Investment made pursuant to this
clause (d)
is not increased at any
time above the amount of such Investment set forth on
Schedule
10.5
;
(e) Investments
received in connection with the bankruptcy or reorganization of suppliers or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon foreclosure
with respect to any secured Investment or other transfer of title with respect
to any secured Investment;
(f) Investments
to the extent that payment for such Investments is made with Stock or Stock
Equivalents of Holdings;
(g) Investments
(i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b)
between or among Restricted Subsidiaries that are not Credit Parties, and (c)
consisting of intercompany Investments incurred in the ordinary course of
business in connection with the cash management operations (including with
respect to intercompany self-insurance arrangements) among the Borrower and
the
Restricted Subsidiaries (provided that any such intercompany Investment in
connection with cash management arrangements by a Credit Party in a Subsidiary
that is not a Credit Party is in the form of an intercompany loan or advance
and
the Borrower or such Restricted Subsidiary complies with
Section 9.12
to
the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary
that
is not a Credit Party, to the extent that the aggregate amount of all
Investments made on or after the Closing Date pursuant to this
subclause
(ii)
, when valued at the fair market value (determined by the Borrower
acting in good faith) of each such Investment at the time each such Investment
was made, is not in excess of (w) $25,000,000 plus (x) the Applicable Equity
Amount at such time
plus
(y) to the extent the Consolidated Senior
Secured Debt to Consolidated EBITDA Ratio is not greater than 4.25 to
1.00, both before and after giving effect, on a Pro Forma Basis, to the making
of such Investment, the Applicable Amount at such time and (iii) by Credit
Parties in any Restricted Subsidiary that is not a Credit Party so long as
such
Investment is part of a series of simultaneous Investments by Restricted
Subsidiaries in other Restricted Subsidiaries that result in the proceeds of
the
initial Investment being invested in one or more Credit Parties;
(h) Investments
constituting Permitted Acquisitions;
(i)
Investments (including but not limited to (i) minority Investments and
Investments in Unrestricted Subsidiaries, (ii) Investments in joint
ventures (regardless of the form of legal entity) or similar Persons that do
not
constitute Restricted Subsidiaries and (iii) Investments in Subsidiaries that
are not Credit Parties), in each case valued at the fair market value
(determined by the Borrower acting in good faith) of such Investment at the
time
each such Investment is made, in an aggregate amount pursuant to this
clause
(i)
that, at the time each such Investment is made, would not exceed the sum
of (w) $100,000,000
plus
(x) the Applicable Equity Amount at such
time
plus
(y) to the extent the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio for the Test Period is not greater than
4.25 to 1.00, both before and after giving effect, on a Pro Forma
Basis, to the making of such Investment, the Applicable Amount at such time
plus
(z) without duplication of any amount that increased the JV
Distribution Amount, an amount equal to any repayments, interest, returns,
profits, distributions, income and similar amounts actually received in cash
in
respect of any such Investment (which amount referred to in this
subclause
(z)
shall not exceed the amount of such Investment valued at the fair market
value of such Investment at the time such Investment was made);
(j) Investments
constituting non-cash proceeds of Dispositions of assets to the extent permitted
by
Section 10.4
;
(k) Investments
made to repurchase or retire Stock or Stock Equivalents of the Borrower or
any
direct or indirect parent thereof owned by any employee or any stock ownership
plan or key employee stock
ownership
plan of the Borrower (or any direct or indirect parent thereof);
(l)
Investments consisting of dividends permitted under
Section
10.6
;
(m) loans
and advances to any direct or indirect parent of the Borrower in lieu of, and
not in excess of the amount of, dividends to the extent permitted to be made
to
such parent in accordance with
Section 10.6
;
(n) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes
receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to suppliers
in the ordinary course of business;
(o) Investments
in the ordinary course of business consisting of endorsements for collection
or
deposit and customary trade arrangements with customers consistent with past
practices;
(p) advances
of payroll payments to employees in the ordinary course of
business;
(q) Guarantee
Obligations of the Borrower or any Restricted Subsidiary of leases (other than
Capital Leases) or of other obligations that do not constitute Indebtedness,
in
each case entered into in the ordinary course of business;
(r) Investments
held by a Person acquired (including by way of merger or consolidation) after
the Closing Date otherwise in accordance with this
Section 10.5
to
the extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger or consolidation and were in existence
on the date of such acquisition, merger or consolidation;
(s) Investments
in Hedge Agreements permitted by
Section 10.1
;
(t) Investments
arising out of or in connection with any Permitted Receivables
Financing;
(u) Investments
in fixed income assets by ARIC consistent with customary practices of portfolio
management on the part of so-called “captive” insurance companies of comparable
size and scope of activities as ARIC;
(v) other
Investments, which, when aggregated with (i) all aggregate principal amounts
paid pursuant to
Section 10.7(a)
from the Closing Date and (ii) all loans
and advances made to any direct or indirect parent of the Borrower pursuant
to
Section 10.5(m)
in lieu of dividends permitted by
Section
10.6(c)
and (iii) all dividends paid pursuant to
Section 10.6(c)
,
shall not exceed an amount equal to (x) $150,000,000
plus
(y) the
Applicable Equity Amount at the time such dividends are paid
plus
(z) to
the extent the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
is
not
greater
than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis,
to
the making of such Investment, the Applicable Amount at the time such Investment
is made;
(w) advances,
loans and extensions of credit made by the Borrower or any Restricted Subsidiary
to the Borrower or any other Restricted Subsidiary in respect of Permitted
Intercompany Indebtedness;
provided
that the aggregate amount of
advances, loans and extensions of credit made by Credit Parties to Restricted
Subsidiaries that are not Credit Parties under this
clause (w)
shall not
exceed $100,000,000 at any time outstanding;
(x) Investments
consisting of purchases and acquisitions of assets and services in the ordinary
course of business; and
(y) Investments
consisting of licensing of intellectual property pursuant to joint marketing
arrangements with other Persons in the ordinary course of business.
10.6.
Limitation
on Dividends
. The
Borrower will not declare or pay any dividends (other than dividends payable
solely in its Stock) or return any capital to its stockholders or make any
other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for consideration, any shares of any class of its Stock or Stock Equivalents
or
the Stock or Stock Equivalents of any direct or indirect parent now or hereafter
outstanding, or set aside any funds for any of the foregoing purposes, or permit
any of the Restricted Subsidiaries to purchase or otherwise acquire for
consideration (other than in connection with an Investment permitted by
Section 10.5
) any Stock or Stock Equivalents of the Borrower, now or
hereafter outstanding (all of the foregoing, “
dividends
”),
provided
that, so long as no Default or Event of Default
exists or would
exist after giving effect thereto:
(a) the
Borrower may (or may pay dividends to permit any direct or indirect parent
thereof to) redeem in whole or in part any of its Stock or Stock Equivalents
for
another class of its (or such parent’s) Stock or Stock Equivalents or with
proceeds from substantially concurrent equity contributions or issuances of
new
Stock or Stock Equivalents,
provided
that such new Stock or Stock
Equivalents contain terms and provisions at least as advantageous to the Lenders
in all respects material to their interests as those contained in the Stock
or
Stock Equivalents redeemed thereby;
(b) the
Borrower may (or may pay dividends to permit any direct or indirect parent
thereof to) repurchase shares of its (or such parent’s) Stock or Stock
Equivalents held by any present or former officer, director or employee (or
their respective Affiliates, estates or immediate family members) of the
Borrower and its Subsidiaries or any parent thereof, so long as such repurchase
is pursuant to, and in accordance with the terms of, management and/or employee
stock plans, stock subscription agreements or shareholder agreements or any
other management or employee benefit plan or agreement;
(c) the
Borrower may pay dividends on its Stock or Stock Equivalents,
provided
that the amount of all such dividends paid from the Closing Date pursuant to
this
clause (c)
, when aggregated with (i) all aggregate principal amounts
paid pursuant to
Section
10.7(a)
from the Closing Date and (ii) (A) all loans and advances made to
any direct or indirect parent of the Borrower pursuant to
Section 10.5(m)
in lieu of dividends permitted by this
clause
(c)
and (B) all Investments made pursuant to
Section 10.5(v)
,
shall not exceed an amount equal to (x) $150,000,000
plus
(y) the
Applicable Equity Amount at the time such dividends are paid
plus
(z) to
the extent the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
is
not greater than 4.25 to 1.00, both before and after giving effect, on a Pro
Forma Basis, to the payment of such dividend, the Applicable Amount at the
time
such dividends are paid; and
(d) the
Borrower may pay dividends:
(i) [Reserved];
(ii) the
proceeds of which shall be used to allow any direct or indirect parent of the
Borrower to pay (A) its operating expenses incurred in the ordinary course
of
business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary course
of business and attributable to the ownership or operations of the Borrower
or
its Subsidiaries, (B) any reasonable and customary indemnification claims made
by directors or officers of the Borrower (or any parent thereof) attributable
to
the ownership or operations of the Borrower and its Restricted Subsidiaries
or
(C) fees and expenses otherwise due and payable by the Borrower or any of its
Restricted Subsidiaries and permitted to be paid by the Borrower or such
Restricted Subsidiary under this Agreement;
(iii) the
proceeds of which shall be used to pay franchise and excise taxes and other
fees, taxes and expenses required to maintain the corporate existence of any
direct or indirect parent of the Borrower;
(iv) to
any direct or indirect parent of the Borrower to finance any Investment
permitted to be made by the Borrower or a Restricted Subsidiary pursuant to
Section 10.5
;
provided
that (A) such dividend shall be made
substantially concurrently with the closing of such Investment, (B) such parent
shall, immediately following the closing thereof, cause (1) all property
acquired (whether assets, Stock or Stock Equivalents) to be contributed to
the
Borrower or such Restricted Subsidiary or (2) the merger (to the extent
permitted in
Section 10.5
) of the Person formed or acquired into the
Borrower or any of its Restricted Subsidiaries and (C) Borrower shall
comply with
Sections 9.11
and
9.12
to the extent
applicable;
(v) the
proceeds of which shall be used to pay customary costs, fees and expenses (other
than to Affiliates) related to any unsuccessful equity or debt offering or
acquisition payable by the Borrower or its Restricted Subsidiaries and permitted
to be paid by the Borrower or its Restricted Subsidiaries by this Agreement;
and
(vi) the
proceeds of which shall be used to pay customary salary, bonus and other
benefits payable to officers and employees of any direct or indirect parent
company of the Borrower to the extent such salaries, bonuses and other benefits
are attributable to the ownership or operation of the Borrower and its
Restricted Subsidiaries;
(e) [Reserved];
(f) the
Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of
fractional shares in connection with any dividend, split or combination thereof
or any Permitted Acquisition and (ii) honor any conversion request by a holder
of convertible Indebtedness and make cash payments in lieu of fractional shares
in connection with any such conversion and may make payments on convertible
Indebtedness in accordance with its terms;
(g) the
Borrower may pay any dividend or distribution within 60 days after the date
of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Agreement;
(h) the
Borrower may declare and pay dividends on the Borrower’s common stock following
the first public offering of the Borrower’s common stock or the common stock of
any of its direct or indirect parents after the Closing Date, of up to 6% per
annum of the net proceeds received by or contributed to the Borrower in or
from
any such public offering to the extent such net proceeds are not utilized in
connection with other transactions permitted by Section 10.5, 10.6 or 10.7;
and
(i) the
Borrower may pay dividends in an amount equal to withholding or similar Taxes
payable or expected to be payable by any present or former employee, director,
manager or consultant (or their respective Affiliates, estates or immediate
family members) and any repurchases of Stock or Stock Equivalents in
consideration of such payments including deemed repurchases in connection with
the exercise of stock options.
Notwithstanding
anything to the
contrary contained in this
Section 10
(including
Section 10.5
and
this
Section 10.6
), the Borrower will not, and will not permit any of its
Restricted Subsidiaries to, pay any cash dividend or make any cash distribution
on or in respect of the Borrower’s Stock or Stock Equivalents or purchase or
otherwise acquire for cash any Stock or Stock Equivalents of the Borrower or
any
direct or indirect parent of the Borrower, for the purpose of paying any cash
dividend or making any cash distribution to, or acquiring any Stock or Stock
Equivalents of the Borrower or any direct or indirect parent of the Borrower
for
cash from the Sponsor, or guarantee any Indebtedness of any Affiliate of the
Borrower for the purpose of paying such dividend, making such distribution
or so
acquiring such Stock or Stock Equivalents to or from the Sponsor, in each case
by means of utilization of the cumulative dividend and investment credit
provided by the use of the Applicable Amount or the exceptions provided by
Section 10.5(i)
,
(m)
and
(v)
,
Section 10.6(c)
and
(g)
and
Section 10.7(a)
, unless at the time and after
giving
effect to such payment, the Consolidated Total Debt to Consolidated EBITDA
Ratio
would be equal to or less than 6.00 to 1.00.
10.7.
Limitations on Debt Payments and Amendments
.
(a) The
Borrower will not, and will not permit any Restricted Subsidiary to, prepay,
repurchase or redeem or otherwise defease any Senior Notes, Senior Subordinated
Notes or any other Permitted Additional Debt that is subordinated to the
Obligations other than as contemplated by
Section 10.1(i)
;
provided
,
however
, that so long as no Default or Event of Default
shall have occurred and be continuing at the date of such prepayment,
repurchase, redemption or other defeasance or would result therefrom, the
Borrower or any Restricted Subsidiary may prepay, repurchase or redeem Senior
Notes, Senior Subordinated Notes or such Permitted Additional Debt (i) in an
aggregate amount from the Closing Date, when aggregated with (A) the aggregate
amount of dividends paid pursuant to
Section 10.6(c)
from the Closing
Date and (B) all (I) Investments made pursuant to
Section 10.5(v)
and (II) loans and advances to any direct or indirect parent of the Borrower
made pursuant to
Section 10.5(m)
, not in excess of the sum of (1)
$150,000,000
plus
(2) the Applicable Equity Amount at the time of such
prepayment, repurchase or redemption
plus
(3) to the extent the
Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is not greater
than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis,
to
the making of such prepayment, repurchase or redemption, the Applicable Amount
at the time of such prepayment, repurchase or redemption;
provided
that
to the extent that the Indebtedness being prepaid, repurchased, redeemed or
otherwise defeased pursuant to this
clause (i)
comprises Senior
Subordinated Notes and such prepayment, repurchase or redemption is made from
the proceeds of other Indebtedness incurred by the Borrower or its Restricted
Subsidiaries, such Indebtedness shall be subordinated to the Obligations on
terms at least as favorable to the Lenders as the Senior Subordinated Notes;
(ii) in the case of Senior Notes, (A) with the proceeds of Senior Notes
described in clause (b) of the definition thereof plus (B) with additional
amounts to the extent that, with respect solely to this clause (B), the
Consolidated Total Debt to Consolidated EBITDA Ratio is not greater than 4.00
to
1.00 both before and after giving effect, on a Pro Forma Basis, to the making
of
such prepayment, repurchase or redemption, (iii) in the case of Senior
Subordinated Notes, with the proceeds of Senior Subordinated Notes described
in
clause (b) of the definition thereof and (iv) in the case of Permitted
Additional Debt, with the proceeds of other Permitted Additional
Debt. For the avoidance of doubt, nothing in this
Section 10.7
shall restrict the making of any “AHYDO catch-up payment” in respect of the
Senior Subordinated Notes.
(b) The
Borrower will not waive, amend, modify, terminate or release any Senior Notes,
Senior Subordinated Notes or Permitted Additional Debt that is subordinated
to
the Obligations or, in each case, the terms applicable thereto, to the extent
that any such waiver, amendment, modification, termination or release would
be
adverse to the Lenders in any material respect.
10.8.
Changes
in Business
. The
Borrower and the Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from
the
business conducted by the Borrower and the Subsidiaries, taken as a whole,
on
the Closing Date and other business activities incidental or reasonably related
to any of the foregoing.
SECTION
11.
Events
of Default
Upon
the
occurrence of any of the following specified events (each an “
Event of
Default
”):
11.1.
Payments
. The
Borrower shall (a) default in the payment when due of any principal of the
Loans
or (b) default, and such default shall continue for five or more days, in the
payment when due of any interest on the Loans or any fees or any other amounts
owing hereunder or under any other Credit Document; or
11.2.
Representations, Etc
.
Any
representation, warranty or statement made or deemed made by any Credit Party
herein or in any other Credit Document or any certificate delivered or required
to be delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
11.3.
Covenants.
Any
Credit Party shall:
(a) default
in the due performance or observance by it of any term, covenant or agreement
contained in
Section 9.1(d)
,
9.5
(solely with respect to the
Borrower) or
Section 10
; or
(b) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in
Section 11.1
or
11.2
or
clause
(a)
of this
Section 11.3
) contained in this Agreement or any
Security Document and such default shall continue unremedied for a period of
at
least 30 days after receipt of written notice by the Borrower from the
Administrative Agent; or
11.4.
Default
Under Other Agreements
. (a) The
Borrower or any of the Restricted Subsidiaries shall (i) default in any payment
with respect to any Indebtedness (other than the Obligations) in excess of
$50,000,000 in the aggregate, for the Borrower and such Restricted Subsidiaries,
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created or (ii) default in the observance
or performance of any agreement or condition relating to any such Indebtedness
(other than Indebtedness in respect of the sale leaseback transactions set
forth
on
Schedule 8.3
) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist
(other than, with respect to Indebtedness consisting of any Hedge Agreements,
termination events or equivalent events pursuant to the terms of such Hedge
Agreements), the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee
or
agent on behalf of such holder or holders) to cause, any such Indebtedness
to
become due or to be repurchased, prepaid, defeased or redeemed (automatically
or
otherwise), or an offer to repurchase, prepay, defease or redeem
such
Indebtedness
to be made, prior to its stated maturity; or (b) without limiting the
provisions of
clause (a)
above, any such Indebtedness (other than
Indebtedness in respect of the sale leaseback transactions set forth on
Schedule 8.3
) shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge
Agreements, other than due to a termination event or equivalent event pursuant
to the terms of such Hedge Agreements), prior to the stated maturity thereof,
provided
that this
clause (b)
shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of
the property or assets securing such Indebtedness, if such sale or transfer
is
permitted hereunder and under the documents providing for such Indebtedness;
or
11.5.
Bankruptcy,
Etc
.
The
Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding
or action concerning itself under (a) Title 11 of the United States Code
entitled “Bankruptcy,” or (b) in the case of any Foreign Subsidiary that is
a Specified Subsidiary, any domestic or foreign law relating to bankruptcy,
judicial management, insolvency, reorganization, administration or relief of
debtors in effect in its jurisdiction of incorporation, in each case as now
or
hereafter in effect, or any successor thereto (collectively, the
“
Bankruptcy Code
”); or an involuntary case, proceeding or
action is commenced against the Borrower or any Specified Subsidiary and the
petition is not controverted within 30 days after commencement of the case,
proceeding or action; or an involuntary case, proceeding or action is commenced
against the Borrower or any Specified Subsidiary and the petition is not
dismissed within 60 days after commencement of the case, proceeding or action;
or a custodian (as defined in the Bankruptcy Code), judicial manager, receiver,
receiver manager, trustee, administrator or similar person is appointed for,
or
takes charge of, all or substantially all of the property of the Borrower or
any
Specified Subsidiary; or the Borrower or any Specified Subsidiary commences
any
other voluntary proceeding or action under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency, administration
or liquidation or similar law of any jurisdiction whether now or hereafter
in
effect relating to the Borrower or any Specified Subsidiary; or there is
commenced against the Borrower or any Specified Subsidiary any such proceeding
or action that remains undismissed for a period of 60 days; or the Borrower
or
any Specified Subsidiary is adjudicated insolvent or bankrupt; or any order
of
relief or other order approving any such case or proceeding or action is
entered; or the Borrower or any Specified Subsidiary suffers any appointment
of
any custodian, receiver, receiver manager, trustee, administrator or the like
for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the Borrower or any Specified Subsidiary
makes a general assignment for the benefit of creditors; or any corporate action
is taken by the Borrower or any Specified Subsidiary for the purpose of
effecting any of the foregoing; or
11.6.
ERISA
. (a)
Any Plan shall fail to satisfy the minimum funding standard required for any
plan year or part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code; any
Plan
is or shall have been terminated or is the subject of termination proceedings
under ERISA (including the giving of written notice thereof); an event shall
have occurred or a condition shall exist in either case entitling the PBGC
to
terminate any Plan or to appoint a trustee to administer any Plan (including
the
giving of written notice thereof); any Plan shall have an accumulated funding
deficiency (whether or not waived); the Borrower or any ERISA Affiliate has
incurred or is likely to incur a
liability
to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including
the giving of written notice thereof); (b) there could result from any event
or
events set forth in
clause (a)
of this
Section 11.6
the imposition
of a lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a lien, security interest or liability;
and
(c) such lien, security interest or liability will or would be reasonably likely
to have a Material Adverse Effect; or
11.7.
Guarantee
. Any
Guarantee provided by any Credit Party or any material provision thereof shall
cease to be in full force or effect (other than pursuant to the terms hereof
and
thereof) or any such Guarantor thereunder or any other Credit Party shall deny
or disaffirm in writing any such Guarantor’s obligations under the Guarantee;
or
11.8.
Pledge
Agreement
. Any
Pledge Agreement pursuant to which the Stock or Stock Equivalents of any
Subsidiary is pledged or any material provision thereof shall cease to be in
full force or effect (other than pursuant to the terms hereof or thereof; or
any
perfection defect arising solely as a result of the failure of the Collateral
Agent to maintain any possessory collateral) or any pledgor thereunder or any
other Credit Party shall deny or disaffirm in writing any pledgor’s obligations
under any Pledge Agreement; or
11.9.
Security
Agreement
. The
Security Agreement or any other Security Document pursuant to which the assets
of the Borrower or any Subsidiary are pledged as Collateral or any material
provision thereof shall cease to be in full force or effect (other than pursuant
to the terms hereof or thereof) or any grantor thereunder or any other Credit
Party shall deny or disaffirm in writing any grantor’s obligations under the
Security Agreement or any other Security Document; or
11.10.
Mortgages
. Any
Mortgage or any material provision of any Mortgage relating to any material
portion of the Collateral shall cease to be in full force or effect (other
than
pursuant to the terms hereof or thereof) or any mortgagor thereunder or any
other Credit Party shall deny or disaffirm in writing any mortgagor’s
obligations under any Mortgage; or
11.11.
Judgments
. One
or more judgments or decrees shall be entered against the Borrower or any of
the
Restricted Subsidiaries involving a liability of $50,000,000 or more in the
aggregate for all such judgments and decrees for the Borrower and the Restricted
Subsidiaries (to the extent not paid or covered by insurance provided by a
carrier not disputing coverage) and any such judgments or decrees shall not
have
been satisfied, vacated, discharged or stayed or bonded pending appeal within
60
days after the entry thereof; or
11.12.
Change
of Control
. A
Change of Control shall occur; or
11.13.
Subordination.
The Senior Subordinated Notes or any guarantees of the foregoing shall cease,
for any reason, to be validly subordinated to the Obligations or the obligations
of the Credit Parties under the Guarantee and the other Security Documents,
as
the case may be, as provided in the Senior Subordinated Notes
Indenture;
then,
and
in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent may and, upon the written request
of the Required Lenders,
shall,
by
written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (
provided
that, if an Event of Default
specified in
Section 11.5
shall occur with respect to the Borrower, the
result that would occur upon the giving of written notice by the Administrative
Agent as specified below shall occur automatically without the giving of any
such notice): declare the principal of and any accrued interest and fees in
respect of any or all Loans and any or all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
11.14.
Application
of Proceeds
. Any
amount received by the Administrative Agent or the Collateral Agent from any
Credit Party (or from proceeds of any Collateral) following any acceleration
of
the Obligations under this Agreement or any Event of Default with respect to
the
Borrower under Section 11.5 shall be applied:
(i)
first
, to the payment of all reasonable and documented costs and
expenses incurred by the Administrative Agent or Collateral Agent in connection
with any collection or sale or otherwise in connection with any Credit Document,
including all court costs and the reasonable fees and expenses of its agents
and
legal counsel, the repayment of all advances made by the Administrative Agent
or
the Collateral Agent hereunder or under any other Credit Document on behalf
of
any Credit Party and any other reasonable and documented costs or expenses
incurred in connection with the exercise of any right or remedy hereunder or
under any other Credit Document (and, if there shall be a shortfall in the
amount available pursuant to this clause to pay all amounts due under this
clause, on a pro rata basis taking into account all amounts due under this
clause (including on account of principal, interest, fees, expenses or
otherwise, as applicable));
(ii)
second
,
to the Tranche B-1 Term Loan Lenders and New B-1 Lenders, an amount equal to
all
Obligations owing to them in respect of the Tranche B-1 Term Loans and New
B-1
Loans on the date of any distribution (other than any amounts in respect of
post-petition interest) (and, if there shall be a shortfall in the amount
available pursuant to this clause to pay all amounts due under this clause,
on a
pro rata basis taking into account all amounts due under this clause (including
on account of principal, interest, fees, expenses or otherwise, as
applicable));
(iii)
third
,
to the Secured Parties, an amount equal to all remaining Obligations owing
to
them on the date of any distribution (including any amounts in respect of
post-petition interest (including such amounts owed to the Tranche B-1 Lenders
and New B-1 Lenders) (and, if there shall be a shortfall in the amount available
pursuant to this clause to pay all amounts due under this clause, on a pro
rata
basis taking into account all amounts due under this clause (including on
account of principal, interest, fees, expenses or otherwise, as applicable));
and
(iv)
fourth
,
any surplus then remaining shall be paid to the applicable Credit Parties or
their successors or assigns or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct;
provided
that any amount received constituting ABL Collateral shall be applied in
accordance with the provisions set forth in the Intercreditor
Agreement.
11.15.
Acknowledgement
by Lenders
. Each
Tranche B-2 Term Loan Lender and each New Term Loan Lender holding New Term
Loans that were identified by the Borrower to be identical (except as
contemplated by Section 2.14 with respect to interest rates and amortization)
to
Tranche B-2 Term Loans (“
New B-2 Loans
” and the lenders
thereof, “
New B-2 Lenders
”) hereby agrees to turn over to the
Administrative Agent, on behalf of the Tranche B-1 Term Loan Lenders and New
Term Loan Lenders holding New Term Loans that were identified by the Borrower
to
be identical (except as contemplated by Section 2.14 with respect to interest
rates and amortization) to Tranche B-1 Term Loans (“
New B-1
Loans
” and the lenders thereof, “
New B-1 Lenders
”),
amounts otherwise received or receivable by them to the extent necessary to
effectuate the priority of payments set forth in
Section 11.14
, even if
such turnover has the effect of reducing the claim or recovery of the Tranche
B-2 Lenders and the New B-2 Lenders. If any Secured Party collects or
receives any amount pursuant to
Section 11.14
to which it is not entitled
thereunder, such Secured Party shall hold the same in trust for the applicable
Secured Parties entitled to such amount and shall forthwith deliver the same
to
the Administrative Agent for the account of such Secured Parties, to be applied
in accordance with
Section 11.14
.
SECTION
12.
The Agents
.
12.1.
Appointment
.
(a) Each
Lender hereby irrevocably designates and appoints the Administrative Agent
as
the agent of such Lender under this Agreement and the other Credit Documents
and
irrevocably authorizes the Administrative Agent, in such capacity, to take
such
action on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The provisions of this
Section 12
(other
than
Section 12.1(c)
with respect to the Joint Lead Arrangers and
Section 12.9
with respect to the Borrower) are solely for the benefit of
the Agents and the Lenders, and the Borrower shall not have rights as third
party beneficiary of any such provision. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or
any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
(b) The
Administrative Agent and each Lender hereby irrevocably designate and appoint
the Collateral Agent as the agent with respect to the Collateral, and each
of
the Administrative Agent and each Lender irrevocably authorizes the Collateral
Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers
and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of this Agreement and the other
Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Collateral Agent shall not have any duties or
responsibilities except those expressly set forth herein, or any fiduciary
relationship with any of the Administrative Agent or the Lenders and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall
be read into this Agreement or any other Credit Document or otherwise exist
against the Collateral Agent.
(c) Each
of the Syndication Agent, Joint Lead Arrangers and Bookrunners and the
Documentation Agent, each in its capacity as such, shall not have any
obligations, duties or responsibilities under this Agreement but shall be
entitled to all benefits of this
Section 12
.
12.2.
Delegation
of Duties
. The
Administrative Agent and the Collateral Agent may each execute any of its duties
under this Agreement and the other Credit Documents by or through agents,
sub-agents, employees or attorneys-in-fact and shall be entitled to advice
of
counsel concerning all matters pertaining to such duties. Neither the
Administrative Agent nor the Collateral Agent shall be responsible for the
negligence or misconduct of any agents, sub-agents or attorneys-in-fact selected
by it in the absence of gross negligence or willful misconduct (as determined
in
the final judgment of a court of competent jurisdiction).
12.3.
Exculpatory
Provisions
. No
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action lawfully taken or omitted
to be
taken by any of them under or in connection with this Agreement or any other
Credit Document (except for its or such Person’s own gross negligence or willful
misconduct, as determined in the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein) or
(b)
responsible in any manner to any of the Lenders or any participant for any
recitals, statements, representations or warranties made by any of the Borrower,
any Guarantor, any other Credit Party or any officer thereof contained in this
Agreement or any other Credit Document or in any certificate, report, statement
or other document referred to or provided for in, or received by such Agent
under or in connection with, this Agreement or any other Credit Document or
for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document, or the perfection or priority
of
any Lien or security interest created or purported to be created under the
Security Documents, or for any failure of the Borrower, any Guarantor or any
other Credit Party to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of any Credit Party
or
any Affiliate thereof. The Collateral Agent shall not be under any
obligation to the Administrative Agent or any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in,
or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of any Credit Party.
12.4.
Reliance
by Agents
. The
Administrative Agent and the Collateral Agent shall be entitled to rely,
and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order
or
other
document or instruction believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice
and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent or the
Collateral Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder
as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent and the Collateral Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first
be
indemnified to its satisfaction by the Lenders against any and all liability
and
expense that may be incurred by it by reason of taking or continuing to take
any
such action. The Administrative Agent and the Collateral Agent shall
in all cases be fully protected in acting, or in refraining from acting,
under
this Agreement and the other Credit Documents in accordance with a request
of
the Required Lenders, and such request and any action taken or failure to
act
pursuant thereto shall be binding upon all the Lenders and all future holders
of
the Loans;
provided
that the Administrative Agent and Collateral Agent
shall not be required to take any action that, in its opinion or in the opinion
of its counsel, may expose it to liability or that is contrary to any Credit
Document or applicable law. For purposes of determining compliance
with the conditions specified in
Section 6
and
7
on the Closing
Date, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document
or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
12.5.
Notice
of Default
. Neither
the Administrative Agent nor the Collateral Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent or Collateral Agent, as applicable,
has received notice from a Lender or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a
“notice of default”. In the event that the Administrative Agent
receives such a notice, it shall give notice thereof to the Lenders and the
Collateral Agent. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders,
provided
that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall
deem advisable in the best interests of the Lenders except to the extent that
this Agreement requires that such action be taken only with the approval of
the
Required Lenders or each of the Lenders, as applicable.
12.6.
Non-Reliance
on Administrative Agent, Collateral Agent and Other Lenders
.
Each
Lender expressly acknowledges that neither the Administrative Agent nor the
Collateral Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent or Collateral
Agent
hereinafter taken, including any review of the affairs of the Borrower, any
Guarantor or any other Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent or Collateral Agent
to
any Lender. Each
Lender
represents to the Administrative Agent and the Collateral Agent that it has,
independently and without reliance upon the Administrative Agent, Collateral
Agent or any other Lender, and based on such documents and information as it
has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower, Guarantor and other Credit Party and made
its
own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, Collateral Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower, any Guarantor and any other Credit
Party. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent nor the Collateral Agent shall have any duty
or
responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of the Borrower, any Guarantor or any other Credit
Party that may come into the possession of the Administrative Agent or
Collateral Agent any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
12.7.
Indemnification
. The
Lenders agree to indemnify the Administrative Agent and the Collateral Agent,
each in its capacity as such (to the extent not reimbursed by the Credit Parties
and without limiting the obligation of the Credit Parties to do so), ratably
according to their respective portions of the Term Loan Commitments or Term
Loans, as applicable, outstanding on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Term Loan
Commitments shall have terminated and the Term Loans shall have been paid in
full, ratably in accordance with their respective portions of the Term Loans
in
effect immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
occur (including at any time following the payment of the Loans) be imposed
on,
incurred by or asserted against the Administrative Agent or the Collateral
Agent
in any way relating to or arising out of the Commitments, this Agreement, any
of
the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent or the Collateral Agent
under or in connection with any of the foregoing,
provided
that no Lender
shall be liable to the Administrative Agent or the Collateral Agent for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Administrative Agent’s or the Collateral Agent’s, as applicable, gross
negligence or willful misconduct as determined
by a final judgment of a court
of
competent jurisdiction;
provided
,
further
,
that no action
taken in accordance with the directions of the Required Lenders (or such other
number or percentage of the Lenders as shall be required by the Credit
Documents) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this
Section 12.7
. In the case of any
investigation, litigation or proceeding giving rise to any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time occur
(including at any
time
following the payment of the Loans), this
Section 12.7
applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent and the Collateral Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
attorneys’ fees) incurred by such Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice rendered in respect of rights or responsibilities under, this Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that such Agent is not reimbursed for such expenses by
or
on behalf of the Borrower,
provided
that such reimbursement by the
Lenders shall not affect the Borrower’s continuing reimbursement obligations
with respect thereto. If any indemnity furnished to any Agent for any
purpose shall, in the opinion of such Agent, be insufficient or become impaired,
such Agent may call for additional indemnity and cease, or not commence, to
do
the acts indemnified against until such additional indemnity is furnished;
provided, in no event shall this sentence require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s
pro
rata
portion thereof; and provided further, this sentence shall not be
deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement resulting from such Agent’s gross negligence or willful
misconduct. The agreements in this
Section 12.7
shall survive
the payment of the Loans and all other amounts payable hereunder.
12.8.
Agents
in its Individual Capacities
. Each
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, any Guarantor, and any other
Credit Party as though such Agent were not an Agent hereunder and under the
other Credit Documents. With respect to the Loans made by it, each
Agent shall have the same rights and powers under this Agreement and the other
Credit Documents as any Lender and may exercise the same as though it were
not
an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.
12.9.
Successor
Agents
. Each
of the Administrative Agent and Collateral Agent may at any time give notice
of
its resignation to the Lenders and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, subject
to the consent of the Borrower (not to be unreasonably withheld or delayed)
so
long as no Default under
Section 11.1
or
11.5
is continuing, to
appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may on behalf of the Lenders, appoint a successor Agent meeting the
qualifications set forth above. Upon the acceptance of a successor’s
appointment as the Administrative Agent or Collateral Agent, as the case may
be,
hereunder, and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Security
Documents, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties
of
the
retiring (or retired) Agent, and the retiring Agent shall be discharged from
all
of its duties and obligations hereunder or under the other Credit Documents
(if
not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower (following the
effectiveness of such appointment) to such Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such
successor. After the retiring Agent’s resignation hereunder and under
the other Credit Documents, the provisions of this
Section 12
(including
12.7
) and
Section 13.5
shall continue in effect for the benefit of
such retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as an Agent.
12.10.
Withholding
Tax
. To
the extent required by any applicable law, the Administrative Agent may withhold
from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of
the United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account
of
any Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Administrative Agent
of a
change in circumstances that rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent (to the extent that the Administrative Agent
has not already been reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties
and interest, together with all expenses incurred, including legal expenses,
allocated staff costs and any out of pocket expenses.
12.11.
Intercreditor Agreement
. The
Collateral Agent is hereby authorized to enter into the Intercreditor Agreement,
and the parties hereto acknowledge that the Intercreditor Agreement is binding
upon them. Each Lender (a) hereby consents to the subordination of
the Liens on the ABL Collateral securing the Obligations on the terms set forth
in the Intercreditor Agreement, (b) hereby agrees that it will be bound by
and
will take no actions contrary to the provisions of the Intercreditor Agreement
and (c) hereby authorizes and instructs the Collateral Agent to enter into
the
Intercreditor Agreement and to subject the Liens on the ABL Collateral securing
the Obligations to the provisions thereof. In addition, each Lender
hereby authorizes the Collateral Agent to enter into (i) any amendments to
the
Intercreditor Agreement and (ii) any other intercreditor arrangements, in the
case of
clauses (i)
and
(ii)
to the extent required to give effect
to the establishment of intercreditor rights and privileges as contemplated
and
required by
Section 10.2(i)
and
(v)
of this
Agreement.
12.12.
Agents
under Security Documents and Guarantee
. Each
Secured Party hereby further authorizes the Administrative Agent or Collateral
Agent, as applicable, on behalf of and for the benefit of the Secured Parties,
to be the agent for and representative of the Secured Parties with respect
to
the Collateral and the Security Documents. Subject to
Section
13.1
, without further written consent or authorization from any Secured
Party, the Administrative Agent or Collateral Agent, as applicable, may execute
any documents or instruments necessary to in connection with a sale or
disposition of assets permitted by this Agreement, (i) release any Lien
encumbering any item of Collateral that is the subject of such sale or other
disposition of assets, or with respect to which Required Lenders (or such other
Lenders as may be required to give such consent under
Section 13.1
) have
otherwise consented or (ii) release any Guarantor from
the
Guarantee, or with respect to which Required Lenders (or such other Lenders
as
may be required to give such consent under
Section 13.1
) have otherwise
consented.
12.13.
Right to Realize on Collateral and Enforce Guarantee
.
Anything
contained in any of the Credit Documents to the contrary notwithstanding, the
Borrower, the Agents and each Secured Party hereby agree that (i) no Secured
Party shall have any right individually to realize upon any of the Collateral
or
to enforce the Guarantee, it being understood and agreed that all powers, rights
and remedies hereunder may be exercised solely by the Administrative Agent,
on
behalf of the Secured Parties in accordance with the terms hereof and all
powers, rights and remedies under the Collateral Documents may be exercised
solely by the Collateral Agent, and (ii) in the event of a foreclosure by the
Collateral Agent on any of the Collateral pursuant to a public or private sale
or other disposition, the Collateral Agent or any Lender may be the purchaser
or
licensor of any or all of such Collateral at any such sale or other disposition
and the Collateral Agent, as agent for and representative of the Secured Parties
(but not any Lender or Lenders in its or their respective individual capacities
unless Required Lenders shall otherwise agree in writing) shall be entitled,
for
the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the purchase price
for any collateral payable by the Collateral Agent at such sale or other
disposition.
SECTION
13.
Miscellaneous
13.1.
Amendments,
Waivers
and Releases
. Neither
this Agreement nor any other Credit Document, nor any terms hereof or thereof,
may be amended, supplemented or modified except in accordance with the
provisions of this
Section 13.1
. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent
and/or the Collateral Agent may, from time to time, (a) enter into with the
relevant Credit Party or Credit Parties written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of adding
any provisions to this Agreement or the other Credit Documents or changing
in
any manner the rights of the Lenders or of the Credit Parties hereunder or
thereunder or (b) waive in writing, on such terms and conditions as the Required
Lenders or the Administrative Agent and/or Collateral Agent, as the case may
be,
may specify in such instrument, any of the requirements of this Agreement or
the
other Credit Documents or any Default or Event of Default and its consequences;
provided
,
however
, that each such waiver and each such amendment,
supplement or modification shall be effective only in the specific instance
and
for the specific purpose for which given and
provided
,
further
,
that no such waiver and no such amendment, supplement or modification shall
(i)
forgive or reduce any portion of any Loan or extend the final scheduled maturity
date of any Loan or reduce the stated rate (it being understood that any change
to the definition of Consolidated Total Debt to Consolidated EBITDA Ratio or
Consolidated Senior Secured Debt to Consolidated EBITDA Ratio or in the
component definitions thereof shall not constitute a reduction in the rate
and
only the consent of the Required Lenders shall be necessary to waive any
obligation of the Borrower to pay interest at the “default rate” or amend
Section 2.8(c)
), or forgive any portion, or extend the date for the
payment, of any interest or fee payable hereunder (other than as a result of
waiving the applicability of any post-default increase in interest rates),
or
extend the final expiration date of any Lender’s Commitment, or increase the
aggregate amount of the Commitments of any Lender, or amend or modify any
provisions of
Section 5.3(a)
(with respect to the ratable
allocation
of any payments only) and
13.8(a)
and
13.20
, or make any Loan,
interest, fee or other amount payable in any currency other than expressly
provided herein, in each case without the written consent of each Lender
directly and adversely affected thereby, or (ii) amend, modify or waive any
provision of this
Section 13.1
or reduce the percentages specified
in the definitions of the terms “Required Lenders”, “Required Tranche B-1 Term
Loan Lenders”, “Required Tranche B-2 Term Loan Lenders”, consent to
the assignment or transfer by the Borrower of its rights and obligations under
any Credit Document to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of application set forth in the
final paragraph of
Section 11
, in each case without the written consent
of each Lender directly and adversely affected thereby, or (iii) amend, modify
or waive any provision of
Section 12
without the written consent of the
then-current Administrative Agent and Collateral Agent or any other former
or
current Agent to whom
Section 12
then applies in a manner that directly
and adversely affects such Person, or (iv) release all or substantially all
of
the Guarantors under the Guarantees (except as expressly permitted by the
Guarantees or this Agreement) or release all or substantially all of the
Collateral under the Security Documents (except as expressly permitted by the
Security Documents or this Agreement) without the prior written consent of
each
Lender, or (v) amend
Section 2.9
so as to permit Interest Period
intervals greater than six months without regard to availability to Lenders,
without the written consent of each Lender directly and adversely affected
thereby, or (vi) amend
Section 11.14
or
11.15
, decrease any
Tranche B-1 Repayment Amount, extend any scheduled Tranche B-1 Repayment Date
or
decrease the amount or allocation of any mandatory prepayment to be received
by
any Tranche B-1 Term Loan Lender, in each case without the written consent
of
the Required Tranche B-1 Term Loan Lenders or (vii) amend
Section 11.14
or
11.15
, decrease any Tranche B-2 Repayment Amount, extend any scheduled
Tranche B-2 Repayment Date or decrease the amount or allocation of any mandatory
prepayment to be received by any Tranche B-2 Term Loan Lender, in each case
without the written consent of the Required Tranche B-2 Term Loan Lenders or
(viii) affect the rights or duties of, or any fees or other amounts payable
to,
any Agent under this Agreement or any other Credit Document without the prior
written consent of such Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
affected Lenders and shall be binding upon the Borrower, such Lenders, the
Administrative Agent and all future holders of the affected Loans. In
the case of any waiver, the Borrower, the Lenders and the Administrative Agent
shall be restored to their former positions and rights hereunder and under
the
other Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing, it being understood that no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon. In connection with the foregoing
provisions, the Administrative Agent may, but shall have no obligations to,
with
the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender.
Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right
to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender (it being understood that any Commitments or Loans held
or deemed held by any Defaulting Lender shall be excluded for a vote of the
Lenders hereunder requiring any consent of the Lenders).
Notwithstanding
the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (a) to add one or more additional credit facilities
to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
to
share ratably in the benefits of this Agreement and the other Credit Documents
with the Term Loans and the accrued interest and fees in respect thereof and
(b)
to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders and other definitions related to such
new
Term Loans.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit
the
refinancing of all outstanding Term Loans (“
Refinanced Term
Loans
”) with a replacement term loan tranche (“
Replacement Term
Loans
”) hereunder;
provided
that (a) the aggregate principal
amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Refinanced Term Loans, (b) the Applicable Margin and
Applicable Margin for such Replacement Term Loans shall not be higher than
the
Applicable Margin and Applicable Margin for such Refinanced Term Loans
immediately prior to such refinancing, (c) the weighted average life to maturity
of such Replacement Term Loans shall not be shorter than the weighted average
life to maturity of such Refinanced Term Loans at the time of such refinancing
(except to the extent of nominal amortization for periods where amortization
has
been eliminated as a result of prepayment of the applicable Term Loans) and
(d)
all other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than those applicable to such Refinanced Term Loans, except to the extent
necessary to provide for covenants and other terms applicable to any period
after the latest final maturity of the Term Loans in effect immediately prior
to
such refinancing.
The
Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent
by the Credit Parties on any Collateral shall be automatically released
(i) in full, upon the termination of this Agreement and the payment of all
Obligations hereunder (except for contingent indemnification obligations in
respect of which a claim has not yet been made), (ii) upon the sale or
other disposition of such Collateral (including as part of or in connection
with
any other sale or other disposition permitted hereunder) to any Person other
than another Credit Party, to the extent such sale or other disposition is
made
in compliance with the terms of this Agreement (and the Collateral Agent may
rely conclusively on a certificate to that effect provided to it by any Credit
Party upon its reasonable request without further inquiry), (iii) to the
extent such Collateral is comprised of property leased to a Credit Party, upon
termination (in accordance with the terms of this Agreement) or expiration
of
such lease, (iv) if the release of such Lien is approved, authorized or ratified
in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this
Section 13.1
),
(v) to the extent the property constituting such Collateral is owned by any
Guarantor, upon the release of such Guarantor from its obligations under the
applicable Guarantee (in accordance with the following sentence) and
(vi) as required to effect any sale or other disposition of Collateral in
connection with any exercise of remedies of the Collateral Agent pursuant to
the
Collateral
Documents. Any such release shall not in any manner discharge, affect
or impair the Obligations or any Liens (other than those being released) upon
(or obligations (other than those being released) of the Credit Parties in
respect of) all interests retained by the Credit Parties, including the proceeds
of any sale, all of which shall continue to constitute part of the Collateral
except to the extent otherwise released in accordance with the provisions of
the
Credit Documents. Additionally, the Lenders hereby irrevocably agree
that the Guarantors shall be released from the Guarantees upon consummation
of
any transaction resulting in such Subsidiary ceasing to constitute a Restricted
Subsidiary. The Lenders hereby authorize the Administrative Agent and
the Collateral Agent, as applicable, to execute and deliver any instruments,
documents, and agreements necessary or desirable to evidence and confirm the
release of any Guarantor or Collateral pursuant to the foregoing provisions
of
this paragraph, all without the further consent or joinder of any
Lender.
13.2.
Notices
. Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile transmission). All such written notices shall
be mailed, faxed or delivered to the applicable address, facsimile number or
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(a) if
to the Borrower, the Administrative Agent or the Collateral Agent, to the
address, facsimile number, electronic mail address or telephone number specified
for such Person on
Schedule 13.2
or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated
by
such party in a notice to the other parties; and
(b) if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number
as
shall be designated by such party in a notice to the Borrower, the
Administrative Agent and the Collateral Agent.
All
such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A)
if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, three Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail, when delivered;
provided
that notices and other communications to
the Administrative Agent or the Lenders pursuant to
Sections 2
,
4
,
and
5
shall not be effective until received.
13.3.
No
Waiver; Cumulative Remedies
. No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent, the Collateral Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
13.4.
Survival
of Representations and Warranties
. All
representations and warranties made hereunder, in the other Credit Documents
and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
13.5.
Payment
of Expenses
; Indemnification
. The
Borrower agrees (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution and delivery of, and any amendment, supplement or
modification to, this Agreement and the other Credit Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and
administration of the transactions contemplated hereby and thereby, including
the reasonable fees, disbursements and other charges of Latham & Watkins LLP
and one counsel in each relevant local jurisdiction, (b) to pay or reimburse
each Agent for all its reasonable out-of-pocket costs and expenses incurred
in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including
the reasonable fees, disbursements and other charges of one counsel to the
Administrative Agent, Collateral Agent and the other Agents (unless there is
an
actual or perceived conflict of interest in which case each such Person may
retain its own counsel), (c) to pay, indemnify, and hold harmless each Lender
and Agent from, any and all recording and filing fees and (d) to pay, indemnify,
and hold harmless each Lender and Agent and their respective Affiliates,
directors, officers, employees and agents from and against any and all other
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable and documented fees, disbursements and other
charges of one primary counsel and one local counsel in each relevant
jurisdiction to such indemnified Persons (unless there is an actual or perceived
conflict of interest or the availability of different claims or defenses in
which case each such Person may retain its own counsel), related to the
Transactions (including, without limitation, the Merger) or, with respect to
the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law (other than by
such
indemnified person or any of its Related Parties (other than any trustee or
advisor)) or to any actual or alleged presence, release or threatened release
of
Hazardous Materials involving or attributable to the operations of the Borrower,
any of its Subsidiaries or any of the Real Estate (all the foregoing in this
clause (d)
, collectively, the “
indemnified
liabilities
”),
provided
that the Borrower shall have no
obligation hereunder to any Agent or any Lender or any of their respective
Related Parties with respect to indemnified liabilities to the extent it has
been determined by a final non-appealable judgment of a court of competent
jurisdiction to have resulted from (i) the gross negligence, bad faith or
willful misconduct of the party to be indemnified or any of its Related Parties
(other than any trustee or advisor) or (ii) any material breach of any
Credit Document by the party to be indemnified. No Person entitled to
indemnification under
clause (d)
of this
Section 13.5
shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any such
Person have any liability for any special, punitive, indirect or consequential
damages relating to this Agreement or any other Credit Document or arising
out
of its activities in connection herewith or therewith (whether before or after
the Closing Date). In the case of an investigation,
litigation
or other proceeding to which the indemnity in this Section 13.5 applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by any Credit Party, its directors, stockholders or
creditors or any other Person, whether or not any Person entitled to
indemnification under
clause (d)
of this
Section
13.5
is otherwise a party thereto. All amounts payable
under this
Section 13.5
shall be paid within ten Business Days of receipt
by the Borrower of an invoice relating thereto setting forth such expense in
reasonable retail. The agreements in this
Section 13.5
shall
survive repayment of the Loans and all other amounts payable
hereunder.
13.6.
Successors
and Assigns; Participations and Assignments
.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) except as expressly permitted by
Section 10.3
, the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section 13.6
. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants (to
the
extent provided in
clause (c)
of this
Section 13.6
) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Collateral Agent and the Lenders and each other Person
entitled to indemnification under
Section 13.5
) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject
to the conditions set forth in
clause (b)(ii)
below, any Lender may at
any time assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) with the prior written consent (such
consent not be unreasonably withheld or delayed; it being understood that,
without limitation, the Borrower shall have the right to withhold or delay
its
consent to any assignment if, in order for such assignment to comply with
applicable law, the Borrower would be required to obtain the consent of, or
make
any filing or registration with, any Governmental Authority) of:
(A) the
Borrower,
provided
that no consent of the Borrower shall be required for
an assignment (1) to a Lender, an Affiliate of a Lender or an Approved Fund,
(2)
if an Event of Default under
Section 11.1
or
Section 11.5
has
occurred and is continuing, any other assignee or (3) to a Person not more
than
14 days following the Closing Date, to the extent the Borrower has previously
consented to an allocation of Tranche B Term Loan Commitments or Tranche B
Term
Loans in an amount greater than or equal to the amount assigned to a Person
in
such time period; and
(B) the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed).
Notwithstanding
the foregoing, no such assignment shall be made to a natural
person.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date
the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000, and increments of
$1,000,000 in excess thereof, unless each of the Borrower and the Administrative
Agent otherwise consents (which consents shall not be unreasonably withheld
or
delayed),
provided
that no such consent of the Borrower shall be required
if an Event of Default under
Section 11.1
or
Section 11.5
has
occurred and is continuing;
provided further
that contemporaneous
assignments to a single assignee made by Affiliates of Lenders and related
Approved Funds shall be aggregated for purposes of meeting the minimum
assignment amount requirements stated above;
(B) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender’s rights and obligations under this Agreement,
provided
that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender’s rights and
obligations in respect of one Class of Commitments or Loans;
(C) The
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance, together with a processing and recordation fee
in
the amount of $3,500;
provided
that the Administrative Agent may, in its
sole discretion, elect to waive such processing and recordation fee in the
case
of any assignment; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an administrative questionnaire in a form approved by the Administrative Agent
(the “
Administrative Questionnaire
”).
(iii) Subject
to acceptance and recording thereof pursuant to
clause (b)(iv)
of
this
Section 13.6
, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto
and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections 2.10
,
2.11
,
5.4
and
13.5
). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this
Section 13.6
shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with
clause (c)
of this
Section
13.6
.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at the Administrative Agent’s Office a copy of each Assignment
and
Acceptance
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the Commitments of, and principal amount of, the Loans owing
to
each Lender pursuant to the terms hereof from time to time (the
“
Register
”). Further, each Register shall contain
the name and address of the Administrative Agent and the lending office through
which each such Person acts under this Agreement. The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the
Collateral Agent and the Lenders shall treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower and the Collateral Agent, at any reasonable time and from time to
time
upon reasonable prior notice.
(v) Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in
clause (b)
of this
Section 13.6
(unless waived) and any written consent to such assignment
required by
clause (b)
of this
Section 13.6
, the Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register.
(c) (i)
Any Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (each, a
“
Participant
”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it),
provided
that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent and the Lenders shall continue
to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and
to
approve any amendment, modification or waiver of any provision of this Agreement
or any other Credit Document,
provided
that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in
clause (i)
or
(iv)
of the proviso to
Section 13.1
that affects such
Participant. Subject to
clause (c)(ii)
of this
Section
13.6
, the Borrower agrees that each Participant shall be entitled to the
benefits of
Sections 2.10
,
2.11
and
5.4
to the same extent
as if it were a Lender and provided that such Participant agrees to be subject
to the requirements of those Sections as though it were a Lender and had
acquired its interest by assignment pursuant to
clause (b)
of this
Section 13.6
. To the extent permitted by law, each Participant
also shall be entitled to the benefits of
Section 13.8(b)
as though
it were a Lender,
provided
such Participant agrees to be subject to
Section 13.8(a)
as though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under
Section 2.10
,
2.11
or
5.4
than the applicable Lender
would have been entitled to receive with respect to the participation sold
to
such Participant, unless the sale of the participation to such Participant
is
made with the Borrower’s prior written consent (which consent shall not be
unreasonably withheld).
(d) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section 13.6
shall not apply to any such pledge or assignment of a
security interest,
provided
that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto. In order to facilitate such pledge or assignment or for any
other reason, the Borrower hereby agrees that, upon request of any Lender at
any
time and from time to time after the Borrower has made its initial borrowing
hereunder, the Borrower shall provide to such Lender, at the Borrower’s own
expense, a promissory note, substantially in the form of
Exhibit K
evidencing the Tranche B Term Loans and New Term Loans, respectively, owing
to
such Lender.
(e) Subject
to
Section 13.16
, the Borrower authorizes each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
“
Transferee
”) and any prospective Transferee any and all
financial information in such Lender’s possession concerning the Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of the
Borrower and its Affiliates pursuant to this Agreement or that has been
delivered to such Lender by or on behalf of the Borrower and its Affiliates
in
connection with such Lender’s credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(f) The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Acceptance shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(g)
SPV
Lender
. Notwithstanding anything to the contrary contained
herein, any Lender (a “
Granting Lender
”) may grant to a special
purpose funding vehicle (a “
SPV
”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and
the Borrower, the option to provide to the Borrower all or any part of any
Loan
that such Granting Lender would otherwise be obligated to make the Borrower
pursuant to this Agreement;
provided
that (i) nothing herein shall
constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant
to
the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby
agrees that no SPV shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with
the
Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV,
it
shall not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws
of
the
United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this
Section 13.6
, any SPV may (i)
with notice to, but without the prior written consent of, the Borrower and
the
Administrative Agent and without paying any processing fee therefor, assign
all
or a portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPV
to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV. This
Section 13.6(g)
may
not be amended without the written consent of the
SPV. Notwithstanding anything to the contrary in this Agreement, (x)
no SPV shall be entitled to any greater rights under
Sections 2.10
,
2.11 and 5.4
than its Granting Lender would have been entitled to absent
the use of such SPV and (y) each SPV agrees to be subject to the requirements
of
Sections 2.10
,
2.11
and
5.4
as though it were a Lender and
has acquired its interest by assignment pursuant to
clause (b)
of this
Section 13.6
.
13.7.
Replacements
of Lenders under Certain Circumstances
.
(a) The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to
Section 2.10
or
5.4
, (b) is affected in the manner described in
Section
2.10(a)(iii)
and as a result thereof any of the actions described in such
Section is required to be taken or (c) becomes a Defaulting Lender, with a
replacement bank or other financial institution,
provided
that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default under
Section 11.1
or
11.5
shall have occurred and be
continuing at the time of such replacement, (iii) the Borrower shall repay
(or
the replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to
Section 2.10
,
2.11
or
5.4
, as the case may be) owing to such replaced Lender
prior to the date of replacement, (iv) the replacement bank or institution,
if
not already a Lender, and the terms and conditions of such replacement, shall
be
reasonably satisfactory to the Administrative Agent, (v) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions
of
Section 13.6
(
provided
that the Borrower shall be obligated to pay
the registration and processing fee referred to therein) and (vi) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
(b) If
any Lender (such Lender, a “
Non-Consenting Lender
”) has failed
to consent to a proposed amendment, waiver, discharge or termination that
pursuant to the terms of
Section 13.1
requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, the
Borrower shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting
Lender to assign its Loans, and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent,
provided
that: (a) all Obligations of the Borrower owing to such
Non-Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, (b) the replacement
Lender shall purchase the foregoing by paying to such Non-Consenting Lender
a
price equal to the principal amount thereof plus accrued and unpaid interest
thereon and (c) the Borrower shall pay to such Non-Consenting Lender the amount,
if any, owing to such Lender pursuant to
Section 5.1(b)
. In
connection with
any
such
assignment, the Borrower, Administrative Agent, such Non-Consenting Lender
and
the replacement Lender shall otherwise comply with
Section
13.6
.
13.8.
Adjustments; Set-off
.
(a) Subject
to
Section 11.15
, if any Lender (a “
benefited Lender
”)
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily
or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in
Section 11.5
, or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender’s Loans, or interest thereon, such benefited Lender
shall purchase for cash from the other Lenders a participating interest in
such
portion of each such other Lender’s Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall
be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders;
provided
,
however
, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned,
to
the extent of such recovery, but without interest.
(b) Subject
to
Section 11.15
, after the occurrence and during the continuance of an
Event of Default, in addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender,
provided
that the failure to give such
notice shall not affect the validity of such set-off and
application.
13.9.
Counterparts
. This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
13.10.
Severability
. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
13.11.
Integration
.
This
Agreement and the other Credit Documents represent the agreement of the
Borrower, the Collateral Agent, the Administrative Agent and the
Lenders
with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Borrower, the Administrative Agent, the
Collateral Agent nor any Lender
relative
to subject matter hereof not expressly set forth or referred to herein or in
the
other Credit Documents.
13.12.
GOVERNING
LAW
. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
13.13.
Submission
to Jurisdiction; Waivers
. The
Borrower irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Credit Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of
New York and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address set forth
on
Schedule 13.2
at such other address of which the Administrative Agent
shall have been notified pursuant to
Section 13.2
;
(d) agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this
Section 13.13
any special, exemplary, punitive or consequential
damages.
(f) Each
Borrower agrees that a final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law.
13.14.
Acknowledgments
. The
Borrower hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;
(b) (i) the
credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Credit Document) are an
arm’s-length commercial transaction between the Borrower, on the one hand, and
the Administrative Agent, the Lenders and the other Agents on the other hand,
and the Borrower and the other Credit Parties are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of
the
transactions contemplated hereby and by the other Credit Documents (including
any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, each of the
Administrative Agent and the other Agents is and has been acting solely as
a
principal and is not the financial advisor, agent or fiduciary for any of the
Borrower, any other Credit Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor any other Agent has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of the Borrower or any other Credit
Party with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Credit Document (irrespective of whether
the
Administrative Agent or other Agent has advised or is currently advising the
Borrower, the other Credit Parties or their respective Affiliates on other
matters) and neither the Administrative Agent or other Agent has any obligation
to the Borrower, the other Credit Parties or their respective Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Credit Documents; (iv) the
Administrative Agent, each other Agent and each Affiliate of the foregoing
may
be engaged in a broad range of transactions that involve interests that differ
from those of the Borrower and their respective Affiliates, and neither the
Administrative Agent nor any other Agent has any obligation to disclose any
of
such interests by virtue of any advisory, agency or fiduciary relationship;
and
(v) neither the Administrative Agent nor any other Agent has provided and none
will provide any legal, accounting, regulatory or tax advice with respect to
any
of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Credit Document) and the Borrower
has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. The Borrower hereby waives and releases,
to the fullest extent permitted by law, any claims that it may have against
the
Administrative Agent or any other Agent with respect to any breach or alleged
breach of agency or fiduciary duty; and
(c) no
joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders
or
among the Borrower, on the one hand, and any Lender, on the other
hand.
13.15.
WAIVERS
OF JURY TRIAL
. THE
BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16.
Confidentiality
.
The
Administrative Agent, each other Agent and each Lender shall hold all non-public
information furnished by or on behalf of the Borrower or any of its Subsidiaries
in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender, the Administrative Agent or such other
Agent pursuant to the requirements of this Agreement (“
Confidential
Information
”), confidential in accordance with its customary procedure
for handling confidential information of this nature and (in the case of a
Lender that is a bank) in accordance with safe and sound banking practices
and
in any event may make disclosure as required or requested by any governmental,
regulatory or self-regulatory agency or representative thereof or pursuant
to
legal process or applicable law or regulation or (a) to such Lender’s or the
Administrative Agent’s or such other Agent’s attorneys, professional advisors,
independent auditors, trustees or Affiliates, (b) to an investor or prospective
investor in a Securitization that agrees its access to information regarding
the
Credit Parties, the Loans and the Credit Documents is solely for purposes of
evaluating an investment in a Securitization and who agrees to treat such
information as confidential, (c) to a trustee, collateral manager, servicer,
backup servicer, noteholder or secured party in connection with the
administration, servicing and reporting on the assets serving as collateral
for
a Securitization and who agrees to treat such information as confidential and
(d) to a nationally recognized ratings agency that requires access to
information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued with respect to a Securitization;
provided
that unless specifically prohibited by applicable law or court order, each
Lender, the Administrative Agent and each other Agent shall use commercially
reasonable efforts to notify the Borrower of any request made to such Lender,
the Administrative Agent or such other Agent, as applicable, by any
governmental, regulatory or self-regulatory agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) for disclosure of any
such
non-public information prior to disclosure of such information, and
provided
further
that in no event shall any Lender, the Administrative Agent or any
other Agent be obligated or required to return any materials furnished by the
Borrower or any Subsidiary. Each Lender, the Administrative Agent and
each other Agent agrees that it will not provide to prospective Transferees
or
to any pledgee referred to in
Section 13.6
or to prospective direct or
indirect contractual counterparties in swap agreements to be entered into in
connection with Loans made hereunder any of the Confidential Information unless
such Person is advised of and agrees to be bound by the provisions of this
Section 13.16
or confidentiality provisions at least as restrictive as
those set forth in the
Section 13.16
.
13.17.
Direct
Website Communications
.
(a) The
Borrower may, at its option, provide to the Administrative Agent any
information, documents and other materials that it is obligated to furnish
to
the Administrative Agent pursuant to the Credit Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (A) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of
an
interest rate or interest period relating thereto), (B) relates to the payment
of any principal or other amount due under the Credit Agreement prior to the
scheduled date therefor, (C) provides notice of any default or event of default
under this Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of the Credit Agreement and/or any borrowing
or
other
extension
of credit thereunder (all such non-excluded communications being referred to
herein collectively as “
Communications
”), by transmitting the
Communications in an electronic/soft medium in a format reasonably acceptable
to
the Administrative Agent to the Administrative Agent at
[ ];
provided
that: (i) upon written
request by the Administrative Agent, the Borrower shall deliver paper copies
of
such documents to the Administrative Agent for further distribution to each
Lender until a written request to cease delivering paper copies is given by
the
Administrative Agent and (ii) the Borrower shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Each
Lender shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such documents from the Administrative
Agent and maintaining its copies of such documents. Nothing in this
Section 13.17
shall prejudice the right of the Borrower, the
Administrative Agent, any other Agent or any Lender to give any notice or other
communication pursuant to any Credit Document in any other manner specified
in
such Credit Document.
(i) The
Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Credit Documents. Each Lender agrees that notice to
it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Credit
Documents. Each Lender agrees (A) to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such
Lender’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such e-mail
address.
(b) The
Borrower further agrees that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on
Intralinks or a substantially similar electronic transmission system (the
“
Platform
”), so long as the access to such Platform is limited
(i) to the Agents and the Lenders and (ii) remains subject the confidentiality
requirements set forth in
Section 13.16
.
(c) THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties
(collectively, the “
Agent Parties
” and each an “
Agent
Party
”) have any liability to the Borrower, any Lender, the Letter of
Credit Issuer or any other Person for losses, claims, damages, liabilities
or
expenses of any kind (whether in tort, contract or otherwise) arising out of
the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the internet, except to the extent the liability of any Agent Party
resulted from
such
Agent Party’s (or any of its Related Parties’ (other than any trustee or
advisor)) gross negligence, bad faith or willful misconduct or material breach
of the Credit Documents.
The
Borrower and each Lender acknowledge that certain of the Lenders may be
“public-side” Lenders (Lenders that do not wish to receive material non-public
information with respect to the Borrower, its Subsidiaries or their securities)
and, if documents or notices required to be delivered pursuant to the Credit
Documents or otherwise are being distributed through the Platform, any document
or notice that the Borrower has indicated contains only publicly available
information with respect to the Borrower may be posted on that portion of the
Platform designated for such public-side Lenders. If the Borrower has
not indicated whether a document or notice delivered contains only publicly
available information, the Administrative Agent shall post such document or
notice solely on that portion of the Platform designated for Lenders who wish
to
receive material nonpublic information with respect to the Borrower, its
Subsidiaries and their securities. Notwithstanding the foregoing, the
Borrower shall use commercially reasonable efforts to indicate whether any
document or notice contains only publicly available information.
13.18.
USA
PATRIOT Act
. Each
Lender hereby notifies the Borrower that pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “
Patriot Act
”), it is required to obtain, verify
and record information that identifies each Credit Party, which information
includes the name and address of each Credit Party and other information that
will allow such Lender to identify each Credit Party in accordance with the
Patriot Act.
13.19.
Judgment
Currency
. If,
for the purposes of obtaining judgment in any court, it is necessary to convert
a sum due hereunder or any other Credit Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent or the Lenders hereunder
or
under the other Credit Documents shall, notwithstanding any judgment in a
currency (the “
Judgment Currency
”) other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement (the “
Agreement Currency
”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent
of
any sum adjudged to be so due in the Judgment Currency, the Administrative
Agent
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency
so purchased is less than the sum originally due to the Administrative Agent
from the Borrower in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess
to
the Borrower (or to any other Person who may be entitled thereto under
applicable law).
13.20.
Payments
Set Aside
. To
the extent that any payment by or on behalf of the Borrower is made to any
Agent
or any Lender, or any Agent or any Lender exercises its right of setoff, and
such payment or the proceeds of such setoff or any part thereof is subsequently
i
nvalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment
had
not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share
of
any amount so recovered from or repaid by any Agent,
plus
interest
thereon from the date of such demand to the date such payment is made at a
rate
per annum equal to the applicable Overnight Rate from time to time in
effect.
EXHIBIT
4.3
GUARANTEE
THIS
GUARANTEE dated as of July 6, 2007, by each of the signatories listed on the
signature pages hereto and each of the other entities that becomes a party
hereto pursuant to Section 19 (the “
Guarantors
”),
in
favor of the Collateral Agent for the benefit of the Secured
Parties.
W
I T N E
S S E T H:
WHEREAS,
reference is made to that certain Credit Agreement, dated as of the date hereof,
(as the same may be amended, restated, supplemented or otherwise modified,
refinanced or replaced from time to time, the “
Credit
Agreement
”)
among
Dollar General Corporation, a Tennessee corporation (the “
Borrower
”),
the
lenders or other financial institutions or entities from time to time party
thereto (the “
Lenders
”),
Goldman Sachs Credit Partners L.P., as Syndication Agent, Lehman Commercial
Paper Inc. and Wachovia Bank, National Association, as Documentation Agents,
and
Citicorp North America, Inc., as Administrative Agent and Collateral Agent;
WHEREAS,
each Guarantor is a direct or indirect wholly-owned Subsidiary of the
Borrower;
WHEREAS,
each Guarantor acknowledges that it will derive substantial direct and indirect
benefit from the making of the Loans; and
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
Loans
to the Borrower under the Credit Agreement that the Guarantors shall have
executed and delivered this Guarantee to the Collateral Agent for the ratable
benefit of the Secured Parties;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent, the Collateral Agent, and the Lenders to enter into the Credit Agreement
and to induce the respective Lenders to make their Loans to the Borrower under
the Credit Agreement and to induce one or more Hedge Banks to enter into Secured
Hedge Agreements with the Borrower and/or its Subsidiaries, the Guarantors
hereby agree with the Collateral Agent, for the ratable benefit of the Secured
Parties, as follows:
1.
Defined
Terms
.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b)
The
words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Guarantee shall refer to this Guarantee as a whole and not to any particular
provision of this Guarantee, and Section references are to Sections of this
Guarantee unless otherwise specified. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
(c)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
2.
Guarantee
.
(a)
Subject
to the provisions of Section 2(b), each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantees, as primary obligor
and not merely as surety, to the Collateral Agent, for the ratable benefit
of
the Secured Parties, the prompt and complete payment and performance when due
(whether at the stated maturity, by required prepayment, acceleration, demand
or
otherwise) of the Obligations of anyone other than such Guarantor (including
amounts that would become due but for operation of the automatic stay under
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)).
(b)
Anything
herein or in any other Credit Document to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder and under the other Credit
Documents shall in no event exceed the amount that can be guaranteed by such
Guarantor under the Bankruptcy Code or any applicable laws relating to
fraudulent conveyances, fraudulent transfers or the insolvency of
debtors.
(c)
Each
Guarantor further agrees to pay any and all expenses (including all reasonable
fees and disbursements of counsel) that may be paid or incurred by the
Collateral Agent or any other Secured Party in enforcing, or obtaining advice
of
counsel in respect of, any rights with respect to, or collecting, any or all
of
the Obligations and/or enforcing any rights with respect to, or collecting
against, such Guarantor under this Guarantee.
(d)
Each
Guarantor agrees that the Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing
this Guarantee or affecting the rights and remedies of the Collateral Agent
or
any other Secured Party hereunder.
(e)
No
payment or payments made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Collateral Agent
,
the Administrative Agent or any other Secured Party from the Borrower, any
of
the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from
time to time in reduction of or in payment of the Obligations shall be deemed
to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder, which shall, notwithstanding any such payment or payments, other
than
payments made by such Guarantor in respect of the Obligations or payments
received or collected from such Guarantor in respect of the Obligations, remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations under the Credit Documents are paid in full
and
the Commitments thereunder are terminated.
(f)
Each
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Collateral Agent or any other Secured Party on account of
its
li-
ability
hereunder, it will notify the Collateral Agent in writing that such payment
is
made under this Guarantee for such purpose.
3.
Right
of Contribution
.
Each
Guarantor hereby agrees that to the extent that a Guarantor shall have paid
more
than its proportionate share of any payment made hereunder (including by way
of
set-off rights being exercised against it), such Guarantor shall be entitled
to
seek and receive contribution from and against any other Guarantor hereunder
who
has not paid its proportionate share of such payment. Each Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 5
hereof. The provisions of this Section 3 shall in no respect limit the
obligations and liabilities of any Guarantor to the Collateral Agent and the
other Secured Parties, and each Guarantor shall remain liable to the Collateral
Agent and the other Secured Parties up to the maximum liability of such
Guarantor hereunder.
4.
Right
of Set-off
.
In
addition to any rights and remedies of the Secured Parties provided by law,
each
Guarantor hereby irrevocably authorizes each Secured Party at any time and
from
time to time following the occurrence and during the continuance of an Event
of
Default, without notice to such Guarantor or any other Guarantor, any such
notice being expressly waived by each Guarantor, upon any amount becoming due
and payable by such Guarantor hereunder (whether at stated maturity, by
acceleration, demand or otherwise), to set-off and appropriate and apply against
such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or
claims, in any currency, in each case whether direct or indirect, absolute
or
contingent, matured or unmatured, at any time held or owing by such Secured
Party to or for the credit or the account of such Guarantor. Each Secured Party
shall notify such Guarantor promptly of any such set-off and the appropriation
and application made by such Secured Party,
provided
that the
failure to give such notice shall not affect the validity of such set-off and
application.
5.
No
Subrogation
.
Notwithstanding any payment or payments made by any of the Guarantors hereunder
or any set-off or appropriation and application of funds of any of the
Guarantors by the Collateral Agent or any other Secured Party, no Guarantor
shall be entitled to be subrogated to any of the rights (or if subrogated by
operation of law, such Guarantor hereby waives such rights to the extent
permitted by applicable law) of the Collateral Agent or any other Secured Party
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Collateral Agent or any other Secured
Party for the payment of any of the Obligations, nor shall any Guarantor seek
or
be entitled to seek any contribution, indemnifications or reimbursement from
the
Borrower or any other Guarantor or other guarantor in respect of payments made
by such Guarantor hereunder in each case, until all amounts owing to the
Collateral Agent and the other Secured Parties on account of the Obligations
under the Credit Documents are paid in full and the Commitments thereunder
are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all the Obligations shall not have been
paid
in full, such amount shall be held by such Guarantor in trust for the Collateral
Agent and the other Secured Parties, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Collateral Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Collateral Agent,
if
required), to be applied against the Obligations, whether due or to become
due,
in such order as the Collateral Agent may determine. Each Guarantor further
agrees that, to the extent the waiver or agreement to withhold the exercise
of
its rights of subrogation, reimbursement, indemnification and contribution
as
set forth herein is found by a court of competent jurisdiction to be void
or
voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Borrower or against any
collateral or security, and any rights of contribution such Guarantor may
have
against any such other guarantor, shall be junior and subordinate to any
rights
the Collateral Agent or any Secured Party may have against Borrower, to all
right, title and interest the Collateral Agent or any Secured Party may have
in
any such collateral or security, and to any right the Collateral Agent or
any
Secured Party may have against such other guarantor.
6.
Amendments,
etc. with Respect to the Obligations; Waiver of Rights
.
Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, (a) any demand for payment of any of the Obligations
made by the Collateral Agent or any other Secured Party may be rescinded by
such
party and any of the Obligations continued, (b) the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Credit Agreement, the other
Credit Documents and any other documents executed and delivered in connection
therewith and the Secured Hedge Agreements and any other documents executed
and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders, as the case may be, or, in the case of any Secured Hedge Agreement,
the
party thereto) may deem advisable from time to time, and (d) any collateral
security, guarantee or right of offset at any time held by the Collateral Agent
or any other Secured Party for the payment of any of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the Collateral Agent
nor any other Secured Party shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against any Guarantor, the Collateral Agent or any other
Secured Party may, but shall be under no obligation to, make a similar demand
on
any Borrower or any Guarantor or any other person, and any failure by the
Collateral Agent or any other Secured Party to make any such demand or to
collect any payments from any Borrower or any Guarantor or any other person
or
any release of any Borrower or any Guarantor or any other person shall not
relieve any Guarantor in respect of which a demand or collection is not made
or
any Guarantor not so released of its several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express
or
implied, or as a matter of law, of the Collateral Agent or any other Secured
Party against any Guarantor. For the purposes hereof “demand” shall include the
commencement and continuance of any legal proceedings.
7.
Guarantee
Absolute and Unconditional
.
(a)
Each
Guarantor waives any and all notice of the creation, contraction, incurrence,
renewal, extension, amendment, waiver or accrual of any of the Obligations,
and
notice of or proof of reliance by the Collateral Agent or any other Secured
Party upon this Guarantee or acceptance of this Guarantee. All Obligations
shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended, waived or accrued, in reliance upon this Guarantee, and
all
dealings between any Borrower and any of the Guarantors, on the one hand, and
the Collateral Agent and the other Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance
upon
this Guarantee. To the fullest extent permitted by applicable law, each
Guarantor waives diligence, promptness, presentment, protest and notice of
protest, demand for payment or performance, notice of default or nonpayment,
notice of acceptance and any other notice in respect of the Obligations or
any
part of them, and any defense arising by reason of any disability or any other
defense of the Borrower or any of the Guarantors with respect to the
Obligations. Each Guarantor understands and agrees that this Guarantee shall
be
construed as a continuing, absolute and unconditional guarantee of payment
and
not of collection (this Guarantee is a primary obligation of each Guarantor
and
not merely a contract of surety) without regard to and hereby waives, to the
fullest extent permitted by applicable law, any and all defenses that it may
have arising in connection with, (a) the validity, regularity or
enforceability of the Credit Agreement, any other Credit Document, any Secured
Hedge Agreement, any of the Obligations or any amendment to or waiver of, any
provision of any thereof (including any change in time, place, manner, or place
of payment, amendment, or waiver or increase thereof) or any collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Collateral Agent or any other Secured Party,
(b) any defense, set-off or counterclaim (other than a defense of payment
or performance), including but not limited to failure of consideration, breach
of warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury, that may at any time be available to or be asserted
by
any Borrower against the Collateral Agent or any other Secured Party or, (c)
any
other circumstance whatsoever (with or without notice to or knowledge of any
Borrower or such Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of any Borrower for the Obligations,
or of such Guarantor under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against any Guarantor,
the Collateral Agent and any other Secured Party may, but shall be under no
obligation to, pursue such rights and remedies as it may have against any
Borrower or any other Person or against any collateral security or guarantee
for
the Obligations or any right of offset with respect thereto, and any failure
by
the Collateral Agent or any other Secured Party to pursue such other rights
or
remedies or to collect any payments from any Borrower or any such other Person
or to realize upon any such collateral security or guarantee or to exercise
any
such right of offset, or any release of any Borrower or any such other Person
or
any such collateral security, guarantee or right of offset, shall not relieve
such Guarantor of any liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Collateral Agent and the other Secured Parties against such Guarantor.
(b)
This
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon each Guarantor and the successors
and
assigns
thereof
and shall inure to the benefit of the Collateral Agent and the other Secured
Parties and their respective successors, indorsees, transferees and assigns
until all Obligations (other than any contingent indemnity obligations not
then
due) shall have been satisfied by payment in full and the Commitments thereunder
shall be terminated, notwithstanding that from time to time during the term
of
the Credit Agreement and any Secured Hedge Agreement the Credit Parties may
be
free from any Obligations.
(c)
A
Guarantor shall automatically be released from its obligations hereunder and
the
Guarantee of such Guarantor shall be automatically released under the
circumstances described in Section 13.1 of the Credit Agreement.
8.
Reinstatement
.
This
Guarantee shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Collateral Agent
or
any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or
as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
9.
Payments
.
Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Collateral Agent without set-off or counterclaim in Dollars (based on the Dollar
Equivalent amount of such Obligations on the date of payment) at the Collateral
Agent’s Office. Each Guarantor agrees that the provisions of Sections 5.4 and
13.19 of the Credit Agreement shall apply to such Guarantor’s obligations under
this Guarantee.
10.
Representations
and Warranties; Covenants
.
(a)
Each
Guarantor hereby represents and warrants that the representations and warranties
set forth in Section 8 of the Credit Agreement as they relate to such
Guarantor and in the other Credit Documents to which such Guarantor is a party,
each of which is hereby incorporated herein by reference, are true and correct
in all material respects as of the Closing Date (except where such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties were true and correct in all material
respects as of such earlier date), and the Collateral Agent and each other
Secured Party shall be entitled to rely on each of them as if they were fully
set forth herein.
(b)
Each
Guarantor hereby covenants and agrees with the Collateral Agent and each other
Secured Party that, from and after the date of this Guarantee until the
Obligations are paid in full and the Commitments are terminated, such Guarantor
shall take, or shall refrain from taking, as the case may be, all actions that
are necessary to be taken or not taken so that no violation of any provision,
covenant or agreement contained in Section 9 or Section 10 of the
Credit Agreement and so that no Default or Event of Default, is caused by any
act or failure to act of such Guarantor or any of its Subsidiaries.
11.
Authority
of the Collateral Agent
.
(a)
The
Collateral Agent enters into this Guarantee in its capacity as agent for
the
Secured Parties from time to time. The rights and obligations of the Collateral
Agent under this Guarantee at any time are the rights and obligations of
the
Secured Parties at that time. Each of the Secured Parties has (subject to
the
terms of the Credit Documents) a several entitlement to each such right,
and a
several liability in respect of each such obligation, in the proportions
described in the Credit Documents. The rights, remedies and discretions of
the
Secured Parties, or any of them, under this Guarantee may be exercised by
the
Collateral Agent. No party to this Guarantee is obliged to inquire whether
an
exercise by the Collateral Agent of any such right, remedy or discretion
is
within the Collateral Agent’s authority as agent for the Secured
Parties.
(b)
Each
party to this Guarantee acknowledges and agrees that any changes (in accordance
with the provisions of the Credit Documents) in the identity of the persons
from
time to time comprising the Secured Parties gives rise to an equivalent change
in the Secured Parties, without any further act. Upon such an occurrence,
the
persons then comprising the Secured Parties are vested with the rights, remedies
and discretions and assume the obligations of the Secured Parties under this
Guarantee. Each party to this Guarantee irrevocably authorizes the Collateral
Agent to give effect to the change in Lenders contemplated in this Section
11(b)
by countersigning an Assignment and Acceptance.
(c)
Each
Guarantor acknowledges and agrees that it has adequate means to obtain
information from the Borrower and each other Guarantor on a continuing basis
concerning the financial condition of the Borrower and each other Guarantor
and
its ability to perform its obligations under the Credit Agreement, the other
Credit Documents and any Secured Hedge Agreement, and each Guarantor assumes
the
responsibility of keeping informed of the financial condition of the Borrower
and each other Guarantor and all circumstances bearing upon the risk of
nonpayment of the Borrower and each other Guarantor. Each Guarantor hereby
waives and relinquishes any duty on the part of the Collateral Agent to disclose
any matter, fact or thing related to the Borrower and each other Guarantor
whether now or hereafter known.
12.
Notices
.
All
notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder
to any Guarantor shall be given to it in care of the Borrower at the Borrower’s
address set forth in Section 13.2 of the Credit Agreement.
13.
Counterparts
.
This
Guarantee may be executed by one or more of the parties to this Guarantee on
any
number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument. A set of the copies of this Guarantee
signed by all the parties shall be lodged with the Collateral Agent and the
Borrower.
14.
Severability
.
Any
provision of this Guarantee that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such
prohibition
or unenforceability without invalidating the remaining provisions hereof,
and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
15.
Integration
.
This
Guarantee together with the other Credit Documents and each other document
in
respect of any Secured Hedge Agreement represent the agreement of each Guarantor
and the Collateral Agent with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by the Collateral
Agent or any other Secured Party relative to the subject matter hereof not
expressly set forth or referred to herein, in the other Credit Documents or,
each other document in respect of any Secured Hedge Agreement.
16.
Amendments
in Writing; No Waiver; Cumulative Remedies
.
(a)
None
of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except in accordance with Section 13.1 of the Credit
Agreement.
(b)
Neither
the Collateral Agent nor any other Secured Party shall by any act (except by
a
written instrument pursuant to Section 16(a)), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any other Secured Party,
any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Collateral Agent or any other Secured Party of
any
right or remedy hereunder on any one occasion shall not be construed as a bar
to
any right or remedy that the Collateral Agent or any Secured Party would
otherwise have on any future occasion.
(c)
The
rights, remedies, powers and privileges herein provided are cumulative, may
be
exercised singly or concurrently and are not exclusive of any other rights
or
remedies provided by law.
17.
Section
Headings
.
The
Section headings used in this Guarantee are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
18.
Successors
and Assigns
.
This
Guarantee shall be binding upon the successors and assigns of each Guarantor
and
shall inure to the benefit of the Collateral Agent and the other Secured Parties
and their respective successors and assigns except that no Guarantor may
assign,
transfer or delegate any of its rights or obligations under this Guarantee
without the prior written consent of the Collateral Agent.
19.
Additional
Guarantors.
Each
Subsidiary of the Borrower that is required to become a party to this Guarantee
pursuant to Section 9.11 of the Credit Agreement shall become a Guarantor,
with
the same force and effect as if originally named as a Guarantor herein, for
all
purposes of this Guarantee, upon execution and delivery by such Subsidiary
of a
written supplement substantially in the form of Annex A hereto. The execution
and delivery of any instrument adding an additional Guarantor as a party to
this
Guarantee shall not require the consent of any other Guarantor hereunder. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party to
this
Guarantee (and any such assignment without such consent shall be null and
void).
20.
WAIVER
OF JURY TRIAL
.
EACH
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE, ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
21.
Submission
to Jurisdiction; Waivers; Service of Process
.
Each
Guarantor hereby irrevocably and unconditionally:
(a)
submits
for itself and its property in any legal action or proceeding relating to this
Guarantee and the other Credit Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of
New York and appellate courts from any thereof;
(b)
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Guarantor in care of the
Borrower at the Borrower’s address set forth in the Credit Agreement, and such
Person hereby irrevocably authorizes and directs the Borrower to accept such
service on its behalf;
(d)
agrees
that nothing herein shall affect the right of the Collateral Agent or any other
Secured Party to effect service of process in any other manner permitted by
law
or shall limit the right of the Collateral Agent or any other Secured Party
to
sue in any other jurisdiction; and
(e)
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section 21
any special, exemplary, punitive or consequential damages.
22.
GOVERNING
LAW
.
THIS
GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
[Signature
pages follow]
-10-
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to he
duly
executed and delivered by its duly authorized officer or other representative
as
of the day and year first above written.
DOLLAR
GENERAL
CORPORATION, as
Guarantor
By:
/s/ Wade
Smith
DG
RETAIL, LLC, as
Guarantor
By:
/s/
Wade
Smith
|
Dollar
|
General
Co
rporation
|
Wade Smith
Treasurer
DOLGENCORP,
INC., as
Guarantor
By:
/s/ Wade
Smith
DOLGENCORP
OF NEW
YORK, INC., as
Guarantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Guarantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
S
-1
Guarantee
Signature Pages
DG
TRANSPORTATION,
INC., as Guarantor
By:
/s/ Wade
Smith
DG
LOGISTICS, LLC, as
Guarantor
By:
/s/
Wade
Smith
DG
Transportation,
Inc. as Manager
Wade
Smith
Treasurer
DGC
PROPERTIES LLC,
as Guarantor
Dolgencorp, Inc., as sole member
Wade Smith
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as
Guarantor
SUN-DOLLAR,
L.P., as
Guarantor
By:
/s/ Wade Smith
South
Boston
Holdings, Inc. general partner
Wade Smith
Treasurer
Dolgencorp, Inc. l
imited
partner
Wade Smith
Treasurer
S
-2
Guarantee
Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Guarantor
By:
Sun-Dollar,
L.P. (sole member)
By:
/s/ Wade Smith
South Boston Holdings, Inc. -
-
its
general
partner
Wade Smith
Treasurer
DG
PROMOTIONS, INC.,
as Guarantor
By:
/s/ Wade Smith
Name: Wade Smith
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Guarantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Guarantor
By:
/s/ Wade Smith
Name:
Wade Smith
Title:
Treasurer
S
-3
Guarantee
Signature Pages
DOLLAR
GENERAL
PARTNERS, as Guarantor
By:
/s/ Wade
Smith
Dollar
General Corporation
-
its
authorized
general
partner
Wade Smith
Treasurer
/s/ Wade Smith
By:
Dollar
General Merchandising, Inc.
—
its
general partner
Wade
Smith
Treasurer
DGC
PROPERTIES OF
KENTUCKY LLC,
as
Guarantor
By:
/s/ Wade
Smith
Dollar
General
Partners as sole member
|
By:
|
Dollar
General Corporation
-
its
authorized general partner
|
Wade Smith
Treasurer
S
-4
Guarantee
Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By:
/s/
Jeffrey Nitz
Name: Jeffrey Nitz
Title:
Director
S-5
Guarantee Signature
Pages
ANNEX
A
TO
THE
GUARANTEE
SUPPLEMENT
NO. [ ] dated as of
[ ]
to the GUARANTEE (the “Guarantee”) dated as of July 6, 2007, among each of the
Guarantors listed on the signature pages thereto (each such subsidiary
individually, a “
Guarantor
”
and,
collectively, the “
Guarantors
”),
and
Citicorp North America Inc., as Collateral Agent for the Lenders from time
to
time parties to the Credit Agreement referred to below.
A.
Reference
is made to that certain Credit Agreement, dated as of the date hereof, (as
the
same may be amended, restated, supplemented or otherwise modified, refinanced
or
replaced from time to time, the “
Credit
Agreement
”)
among
Dollar General Corporation, a Tennessee corporation (the “
Borrower
”),
the
lenders or other financial institutions or entities from time to time party
thereto (the “
Lenders
”),
Goldman Sachs Credit Partners L.P., as Syndication Agent, Lehman Brothers Inc.
and Wachovia Capital Markets, LLC, as Documentation Agents, and Citicorp North
America, Inc., as Administrative Agent and Collateral Agent.
B.
Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guarantee.
C.
The
Guarantors have entered into the Guarantee in order to induce the Administrative
Agent, the Collateral Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective Loans to the Borrower under
the Credit Agreement and to induce one or more Hedge Banks to enter into Secured
Hedge Agreements with the Borrower and/or its Restricted Subsidiaries.
D.
Section
9.11 of the Credit Agreement and Section 19 of the Guarantee provide that
additional Subsidiaries may become Guarantors under the Guarantee by execution
and delivery of an instrument in the form of this Supplement. Each undersigned
Subsidiary (each a “
New
Guarantor
”)
is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Guarantor under the Guarantee in order to induce the
Lenders to make additional Loans, to induce one or more Hedge Banks to enter
into Secured Hedge Agreements and as consideration for Loans previously
made.
Accordingly,
the Collateral Agent and each New Guarantor agrees as follows:
SECTION
1.
In
accordance with Section 19 of the Guarantee, each New Guarantor by its signature
below becomes a Guarantor under the Guarantee with the same force and effect
as
if originally named therein as a Guarantor, and each New Guarantor hereby (a)
agrees to all the terms and provisions of the Guarantee applicable to it as
a
Guarantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Guarantor thereunder are true and correct on
and
as of the date hereof (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date). Each reference to a Guarantor in the Guarantee shall be deemed to include
each New Guarantor. The Guarantee is hereby incorporated herein by
reference.
SECTION
2.
Each
New Guarantor represents and warrants to the Collateral Agent and the other
Secured Parties that this Supplement has been duly authorized, executed and
delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
SECTION
3.
This
Supplement may be executed by one or more of the parties to this Supplement
on
any number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument. A set of the copies of this Supplement
signed by all the parties shall be lodged with the Borrower and the Collateral
Agent. This Supplement shall become effective as to each New Guarantor when
the
Collateral Agent shall have received counterparts of this Supplement that,
when
taken together, bear the signatures of such New Guarantor and the Collateral
Agent.
SECTION
4.
Except as expressly
supplemented hereby, the Guarantee shall remain in full force and
effect.
SECTION
5.
THIS
SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION
6.
Any
provision of this Supplement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and of the Guarantee, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereto
shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
7.
All
notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder
to each New Guarantor shall be given to it in care of the Borrower at the
Borrower’s address set forth in Section 13.2 of the Credit
Agreement.
IN
WITNESS WHEREOF, each New Guarantor and the Collateral Agent have duly executed
this Supplement to the Guarantee as of the day and year first above
written.
[NAME
OF NEW
GUARANTOR]
By:
Name:
Title:
CITICORP
NORTH
AMERICA, INC.,
as
Collateral Agent
By:
Name:
Title:
EXHIBIT
4.4
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT dated as of July 6, 2007, among Dollar General Corporation,
a
Tennessee corporation (the “
Borrower
”),
each
of the Subsidiaries of the Borrower listed on the signature pages hereto or
that
becomes a party hereto pursuant to Section 8.13 (each such entity being a
“
Subsidiary
Grantor
”
and,
collectively, the “
Subsidiary
Grantors
”;
the
Subsidiary Grantors and the Borrower are referred to collectively as the
“
Grantors
”),
and
Citicorp North America, Inc. (“
Citicorp
”),
as
Collateral Agent (in such capacity, the “
Collateral
Agent
”)
under
the Credit Agreement (as defined below) for the benefit of the Secured
Parties.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
reference is made to that certain Credit Agreement, dated as of the date hereof,
(as the same may be amended, restated, supplemented or otherwise modified,
refinanced or replaced from time to time, the “
Credit
Agreement
”)
among
the Borrower, the lenders or other financial institutions or entities from
time
to time party thereto (the “
Lenders
”),
and
Citicorp North America, Inc., as Administrative Agent and Collateral Agent;
WHEREAS,
(a) pursuant to the Credit Agreement, among other things, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and subject to
the
conditions set forth therein and (b) one or more Hedge Banks may from time
to
time enter into Secured Hedge Agreements with the Borrower and/or its
Subsidiaries;
WHEREAS,
pursuant to the Guarantee, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “
Guarantee
”),
each
Subsidiary Grantor has agreed to unconditionally and irrevocably guarantee,
as
primary obligor and not merely as surety, to the Secured Parties, the prompt
and
complete payment and performance when due (whether at the stated maturity,
by
acceleration or otherwise) of the Obligations (as defined below);
WHEREAS,
each Subsidiary Grantor is a Guarantor;
WHEREAS,
the proceeds of the Loans will be used in part to enable the Borrower to make
valuable transfers to the Subsidiary Grantors in connection with the operation
of their respective businesses;
WHEREAS,
each Grantor acknowledges that it will derive substantial direct and indirect
benefit from the making of the Loans; and
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make the Loans
to the Borrower under the Credit Agreement that the Grantors shall have executed
and delivered this Security Agreement to the Collateral Agent for the ratable
benefit of the Secured Parties;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent, the Collateral Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make the Loans to the Borrower under the Credit
Agreement and to induce one or more Lenders or affiliates of Lenders to enter
into Secured Hedge Agreements with the
Borrower
and/or its Subsidiaries, the Grantors hereby agree with the Collateral Agent,
for the benefit of the Secured Parties, as follows:
1.
Defined
Terms
.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b)
Terms
used herein without definition that are defined in the UCC have the meanings
given to them in the UCC, and if defined in more than one article of the UCC
shall have the meanings set forth in Article 9 thereof, including the following
terms (which are capitalized herein): Account, Chattel Paper, Commodity
Contract, Deposit Accounts, Documents, Instruments, Inventory, Letter-of-Credit
Right, Security Entitlement, Supporting Obligation and Tangible Chattel
Paper.
(c)
The
following terms shall have the following meanings:
“
Collateral
”
shall
have the meaning provided in Section 2.
“
Collateral
Account
”
shall
mean any collateral account established by the Collateral Agent as provided
in
Section 5.1 or Section 5.3.
“
Collateral
Agent
”
shall
have the meaning provided in the preamble to this Security
Agreement.
“
Control
”
shall
mean “control,” as such term is defined in Section 9-104 or 9-106, as
applicable, of the UCC.
“
Copyright
License
”
shall
mean any written agreement, now or hereafter in effect, granting any right
to
any third party under any copyright now or hereafter owned by any Grantor
(including all Copyrights) or that any Grantor otherwise has the right to
license, or granting any right to any Grantor under any copyright now or
hereafter owned by any third party, and all rights of any Grantor under any
such
agreement, including those listed on
Schedule
1
.
“
Copyrights
”
shall
mean, with respect to any Person, all of the following now owned or hereafter
acquired by such Person: (i) all copyright rights in any work subject to the
copyright laws of the United States or any other country or group of countries,
whether as author, assignee, transferee or otherwise and (ii) all registrations
and applications for registration of any such copyright in the United States
or
any other country or group of countries, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office, including those listed on
Schedule
2
.
“
equipment
”
shall
mean all “equipment,” as such term is defined in Article 9 of the UCC, now or
hereafter owned by any Grantor or to which any Grantor has rights and, in any
event, shall include all machinery, equipment, furnishings, movable trade
fixtures and vehicles now or hereafter owned by any Grantor or to which any
Grantor has rights and any and all Proceeds, additions, substitutions and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon
or
affixed
thereto; but excluding equipment to the extent it is subject to a Lien,
permitted by the Credit Agreement and the terms of the Indebtedness secured
by
such Lien prohibit assignment of, or granting of a security interest in,
such
Grantor’s rights and interests therein (other than to the extent that any such
prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the UCC (or any successor provision or provisions) of any
relevant jurisdiction or any other applicable law),
provided
,
that
immediately upon the repayment of all Indebtedness secured by such Lien,
such
Grantor shall be deemed to have granted a Security Interest in all the rights
and interests with respect to such equipment.
“
General
Intangibles
”
shall
mean all “general intangibles” as such term is defined in Article 9 of the UCC
and, in any event, including with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions thereof, to
which such Grantor is a party or under which such Grantor has any right, title
or interest or to which such Grantor or any property of such Grantor is subject,
as the same may from time to time be amended, supplemented or otherwise
modified, including (a) all rights of such Grantor to receive moneys due and
to
become due to it thereunder or in connection therewith, (b) all rights of such
Grantor to receive proceeds of any insurance, indemnity, warranty or guarantee
with respect thereto, (c) all claims of such Grantor for damages arising out
of
any breach of or default thereunder and (d) all rights of such Grantor to
terminate, amend, supplement, modify or exercise rights or options thereunder,
to perform thereunder and to compel performance and otherwise exercise all
remedies thereunder, in each case to the extent the grant by such Grantor of
a
Security Interest pursuant to this Security Agreement in its right, title and
interest in any such contract, agreement, instrument or indenture (i) is not
prohibited by such contract, agreement, instrument or indenture without the
consent of any other party thereto, (ii) would not give any other party to
any
such contract, agreement, instrument or indenture the right to terminate its
obligations thereunder or (iii) is permitted with consent if all necessary
consents to such grant of a Security Interest have been obtained from the other
parties thereto (other than to the extent that any such prohibition or consent
requirement referred to in clauses (i), (ii) and (iii) would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9 409 of the Uniform
Commercial Code (or any successor provision or provisions) of any relevant
jurisdiction or any other applicable law) (it being understood that the
foregoing shall not be deemed to obligate such Grantor to obtain such consents),
provided
that the
foregoing limitation shall not affect, limit, restrict or impair the grant
by
such Grantor of a Security Interest pursuant to this Security Agreement in
any
Account or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
“
Grantor
”
shall
have the meaning assigned to such term in the recitals hereto.
“
Intellectual
Property
”
shall
mean all of the following now owned or hereafter created or acquired by any
Grantor: (A) all Copyrights, Trademarks and Patents, and (B) all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise now owned or
hereafter acquired, including (a) all information used or useful arising from
the business including all goodwill, trade secrets, trade secret rights,
know-how, customer lists, processes of production, ideas, confidential business
information, techniques, processes, formulas and all other proprietary
information, and (b) rights, priorities and privileges relating to the foregoing
and the Licenses and all rights to sue at law or in equity for any past, present
or future infringement, misappropriation, dilution or other
impairment
thereof, including the right to receive all proceeds and damages therefrom,
in
each case to the extent the grant by such Grantor of a Security Interest
pursuant to this Security Agreement in any such rights, priorities and
privileges relating to intellectual property (i) is not prohibited by any
contract, agreement or other instrument governing such rights, priorities
and
privileges without the consent of any other party thereto, (ii) would not
give
any other party to any such contract, agreement or other instrument the right
to
terminate its obligations thereunder or (iii) is permitted with consent if
all
necessary consents to such grant of a Security Interest have been obtained
from
the relevant parties (other than to the extent that any such prohibition
or
consent requirement referred to in clauses (i), (ii) and (iii) would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC
(or any
successor provision or provisions) of any relevant jurisdiction or any other
applicable law) (it being understood that the foregoing shall not be deemed
to
obligate such Grantor to obtain such consents).
“
Intercreditor
Agreement
”
shall
have the meaning provided in Section 8.15.
“
Investment
Property
”
shall
mean all Securities (whether certificated or uncertificated), Security
Entitlements and Commodity Contracts of any Grantor (other than (i) as pledged
pursuant to the Pledge Agreement and (ii) solely with respect to the
Obligations, any Stock or Stock Equivalents of any Foreign Subsidiary in excess
of 65% of the outstanding class of such Stock or Stock Equivalents), whether
now
or hereafter acquired by any Grantor, except, in each case, to the extent the
grant by a Grantor of a Security Interest therein pursuant to this Security
Agreement in its right, title and interest in any such Investment Property
(i)
is prohibited by any contract, agreement, instrument or indenture governing
such
Investment Property without the consent of any other party thereto unless such
consent has been expressly obtained, or (ii) would give any other party to
any
such contract, agreement, instrument or indenture the right to terminate its
obligations thereunder (other than to the extent that any such prohibition
referred to in clauses (i) and (ii) would be rendered ineffective pursuant
to
Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision
or
provisions) of any relevant jurisdiction or any other applicable law) (it being
understood that the foregoing shall not be deemed to obligate any Grantor to
seek or obtain any such consents referred to in clauses (i) or (ii)
above).
“
License
”
shall
mean any Patent License, Trademark License, Copyright License or other license
or sublicense to which any Grantor is a party.
“
Patent
License
”
shall
mean any written agreement, now or hereafter in effect, granting to any third
party any right to make, use or sell any invention on which a patent, now or
hereafter owned by any Grantor (including all Patents) or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, have made, use, import or sell any invention on which a
Patent, now or hereafter owned by any third party, is in existence, and all
rights of any Grantor under any such agreement, including those listed on
Schedule
3
.
“
Patents
”
shall
mean, with respect to any Person, all of the following now owned or hereafter
acquired by such Person: (a) all letters patent of the United States or the
equivalent thereof in any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or the
equivalent thereof in any other country, including registrations, recordings
and
pending applications in the United States Patent and Trademark Office or
any
similar offices in any other country, and (b) all reissues, continuations,
divisions, continuations-in-part, renewals or extensions thereof, and the
inventions disclosed or claimed therein, including the right to make, have
made,
use, import and/or sell the inventions disclosed or claimed therein, including
those listed on
Schedule
4
.
“
Proceeds
”
shall
mean all “proceeds” as such term is defined in Article 9 of the UCC and, in any
event, shall include with respect to any Grantor, any consideration received
from the sale, exchange, license, lease or other disposition of any asset or
property that constitutes Collateral, any value received as a consequence of
the
possession of any Collateral and any payment received from any insurer or other
Person or entity as a result of the destruction, loss, theft, damage or other
involuntary conversion of whatever nature of any asset or property that
constitutes Collateral, and shall include (a) all cash and negotiable
instruments received by or held on behalf of the Collateral Agent, (b) any
claim
of any Grantor against any third party for (and the right to sue and recover
for
and the rights to damages or profits due or accrued arising out of or in
connection with) (i) past, present or future infringement of any Patent now
or
hereafter owned by any Grantor, or licensed under a Patent License, (ii) past,
present or future infringement or dilution of any Trademark now or hereafter
owned by any Grantor or licensed under a Trademark License or injury to the
goodwill associated with or symbolized by any Trademark now or hereafter owned
by any Grantor, (iii) past, present or future breach of any License (iv) past,
present or future infringement of any Copyright now or hereafter owned by any
Grantor or licensed under a Copyright License, and (v) past, present or future
misappropriation of any trade secret now or hereafter owned by any Grantor
and
(c) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
“
Revolving
Credit Collateral
”
shall
have the meaning given such term by the Intercreditor Agreement.
“
Security
Agreement
”
shall
mean this Security Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
“
Security
Interest
”
shall
have the meaning provided in Section 2.
“
Trademark
License
”
shall
mean any written agreement, now or hereafter in effect, granting to any third
party any right to use any trademark now or hereafter owned by any Grantor
(including any Trademark) or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any
such
agreement, including those listed on
Schedule
5
.
“
Trademarks
”
shall
mean, with respect to any Person, all of the following now owned or hereafter
acquired by such Person: (i) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names,
trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof (if any), and all
registration and recording applications filed in connection therewith, including
registrations and registration applications in the United States Patent and
Trademark Office or any similar offices in any State of the United States or
any
other country or any political subdivision
thereof,
and all extensions or renewals thereof, (ii) all goodwill associated therewith
or symbolized thereby and (iii) all other assets, rights and interests that
uniquely reflect or embody such goodwill, including those listed on
Schedule
6
hereto.
“
UCC
”
shall
mean the Uniform Commercial Code as from time to time in effect in the State
of
New York;
provided
,
however
,
that,
in the event that, by reason of mandatory provisions of law, any of the
attachment, perfection or priority of the Collateral Agent’s and the Secured
Parties’ security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York,
the term “
UCC
”
shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such
provisions.
(d)
The
words
“hereof”, “herein”, “hereto” and “hereunder” and words of similar import when
used in this Security Agreement shall refer to this Security Agreement as a
whole and not to any particular provision of this Security Agreement, and
Section, subsection, clause and Schedule references are to this Security
Agreement unless otherwise specified. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
(e)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
(f)
Where
the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the
relevant part thereof.
(g)
References
to “Lenders” in this Security Agreement shall be deemed to include affiliates of
any Lender that may from time to time enter into Secured Hedge Agreements with
the Borrower and/or its Subsidiaries.
2.
Grant
of Security Interest
.
(a)
Each
Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, for the ratable benefit
of
the Secured Parties, and grants to the Collateral Agent, for the ratable benefit
of the Secured Parties, a lien on and security interest in (the “
Security
Interest
”),
all
of its right, title and interest in, to and under all of the following property
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the “
Collateral
”),
as
collateral security for the prompt and complete payment and performance when
due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations:
(i)
all
Accounts;
(ii)
all
Chattel Paper;
(iii)
all
Documents;
(iv)
all
equipment;
(v)
all
General Intangibles;
(vi)
all
Instruments;
(vii)
all
Intellectual Property;
(viii)
all
Inventory;
(ix)
all
Investment Property;
(x)
all
Letters of Credit and Letter-of-Credit Rights;
(xi)
all
Supporting Obligations;
(xii)
all
Collateral Accounts;
(xiii)
all
books
and records pertaining to the Collateral;
(xiv)
the
extent not otherwise included, all Proceeds and products of any and all of
the
foregoing;
provided
,
(x) the
Collateral for any Obligations shall not include any Excluded Stock and Stock
Equivalents with respect to such Obligations, (y) that none of the items
included in clauses (i) through (xiv) above shall constitute Collateral to
the
extent (and only to the extent) that the grant of the Security Interest therein
would violate any Requirement of Law applicable to such Collateral (other than
to the extent that any such Requirement of Law would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable
law) and (z) the Collateral shall not include any “intent-to-use” Trademark
application prior to the filing of and acceptance by the United States Patent
and Trademark Office of a “Statement of Use” or “Amendment to Allege Use” with
respect thereto, to the extent, if any, that, solely during the period, if
any,
in which the grant of a security interest therein would impair the validity
or
enforceability of any registration issuing from such “intent-to-use” Trademark
application under applicable federal law.
(b)
Each
Grantor hereby irrevocably authorizes the Collateral Agent and its Affiliates,
counsel and other representatives, at any time and from time to time, to file
or
record financing statements, amendments to financing statements and, with notice
to the Borrower, and other filing or recording documents or instruments with
respect to the Collateral in such form and in such offices as the Collateral
Agent reasonably determines appropriate to perfect the Security Interests of
the
Collateral Agent under this Security Agreement, and such financing statements
and amendments may describe the Collateral covered thereby as “all assets”, “all
personal property” or words of similar effect. Each Grantor hereby also
authorizes the Collateral Agent and its Affiliates, counsel and other
representatives, at any time and from time to time, to file continuation
statements with respect to previously filed financing statements. A photographic
or other reproduction of this Security Agreement shall be sufficient as a
financing statement or
other
filing or recording document or instrument for filing or recording in any
jurisdiction to the Collateral Agent.
Each
Grantor hereby agrees to provide to the Collateral Agent, promptly upon request,
any information reasonably necessary to effectuate the filings or recordings
authorized by this Section 2(b) including the Intellectual Property filings
referred to below.
The
Collateral Agent is further authorized to file with the United States Patent
and
Trademark Office or United States Copyright Office (or any successor office
or
any similar office in any other country) such documents as may be necessary
or
advisable for the purpose of perfecting, confirming, continuing, enforcing
or
protecting the Security Interest granted hereunder by each Grantor, without
the
signature of any Grantor, and naming any Grantor or the Grantors as debtors
and
the Collateral Agent, as the case may be, as secured party provided that at
the
reasonable request of the Collateral Agent each Grantor agrees to execute any
such documents to be so filed.
The
Security Interests are granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or in any way alter or modify,
any obligation or liability of any Grantor with respect to or arising out of
the
Collateral.
3.
Representations
and Warranties
.
Each
Grantor hereby represents and warrants to the Collateral Agent and each Secured
Party on the date hereof:
3.1
Title;
No Other Liens
.
Except
for (a) the Security Interest granted to the Collateral Agent for the benefit
of
the Secured Parties pursuant to this Security Agreement, (b) the Liens permitted
by the Credit Agreement and (c) any Liens securing Indebtedness which is no
longer outstanding or any Liens with respect to commitments to lend which have
been terminated, such Grantor owns each item of the Collateral free and clear
of
any and all Liens or claims of others. No security agreement, financing
statement or other public notice with respect to all or any part of the
Collateral that evidences a Lien securing any material Indebtedness is on file
or of record in any public office, except such as (i) have been filed in favor
of the Collateral Agent for the ratable benefit of the Secured Parties pursuant
to this Security Agreement or (ii) are permitted by the Credit
Agreement.
3.2
Perfected
First Priority Liens
.
(a)
This
Security Agreement is effective to create in favor of the Collateral Agent,
for
its benefit and for the benefit of the Secured Parties, legal, valid and
enforceable Security Interests in the Collateral, subject to the effects of
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
general equitable principles.
(b)
Subject
to the limitations set forth in clause (c) of this Section 3.2, the Security
Interests granted pursuant to this Security Agreement (i) will constitute valid
and perfected Security Interests in the Collateral (as to which perfection
may
be obtained by the filings or other actions described in clause (A), (B) or
(C)
of this paragraph) in favor of the Collateral Agent, for the ratable benefit
of
the Secured Parties, as collateral security for the Obligations, upon (A) the
filing
in
the applicable filing offices listed on Schedule I hereto of all financing
statements, in each case, naming each Grantor as “debtor” and the Collateral
Agent as “secured party” and describing the Collateral, (B) delivery to the
Collateral Agent (or its bailee) of all Instruments, Chattel Paper, Certificated
Securities and negotiable Documents in each case, properly endorsed for transfer
in blank and (C) completion of the filing, registration and recording of
a fully
executed agreement in the form hereof (or a supplement hereto) and containing
a
description of all Collateral constituting Intellectual Property in the United
States Patent and Trademark Office (or any successor office) within the three
month period (commencing as of the date hereof) or, in the case of Collateral
constituting Intellectual Property acquired after the date hereof, thereafter
pursuant to 35 USC § 261 and 15 USC § 1060 and the regulations
thereunder with respect to United States Patents and United States registered
Trademarks and in the United States Copyright Office (or any successor office)
within the one month period (commencing as of the applicable date of acquisition
or filing) or, in the case of Collateral constituting Intellectual Property
acquired after the date hereof, thereafter with respect to United States
registered Copyrights pursuant to 17 USC § 205 and the regulations
thereunder as soon as reasonably practicable, and otherwise as may be required
pursuant to the laws of any other necessary jurisdiction to the extent that
a
security interest may be perfected by such filings, registrations and
recordings, and (ii) are prior to all other Liens on the Collateral other
than
Liens permitted pursuant to Section 10.2 of the Credit
Agreement.
(c)
Notwithstanding
anything to the contrary herein, no Grantor shall be required to perfect the
Security Interests granted by this Security Agreement (including Security
Interests in cash, cash accounts and Investment Property) by any means other
than by (i) filings pursuant to the Uniform Commercial Code of the relevant
State(s), (ii) filings in the United States Patent and Trademark Office, United
States Copyright Office, or successor offices, that are necessary or advisable
for the purpose of perfecting, confirming, enforcing, or protecting the Security
Interests granted in certain Intellectual Property and (iii) delivery to the
Collateral Agent (or its bailee) to be held in its possession of all Collateral
consisting of Tangible Chattel Paper, Instruments or any Certificated Securities
with a fair market value in excess of $1,500,000 individually.
(d)
It
is
understood and agreed that the Security Interests in cash and Investment
Property created hereunder shall not prevent the Grantors from using such assets
in the ordinary course of their respective businesses.
3.3
Grantor
Information
.
Schedule
II hereto sets forth under the appropriate headings as of the Closing Date:
(1)
the full legal name of such Grantor, (2) to the knowledge of the Grantor, all
trade names or other names under which such Grantor currently conducts business,
(3) the type of organization of such Grantor, (4) the jurisdiction of
organization of such Grantor, (5) its organizational identification number,
if
any, and (6) the jurisdiction where the chief executive office of such Grantor
is located.
4.
Covenants
.
Each
Grantor hereby covenants and agrees with the Collateral Agent and the Secured
Parties that, from and after the date of this Security Agreement until the
Obligations (except for contingent indemnification obligations in respect of
which a claim has not yet been made) are paid in full and the Commitments are
terminated:
4.1
Maintenance
of Perfected Security Interest; Further Documentation
.
(a)
Such
Grantor shall maintain the Security Interest created by this Security Agreement
as a perfected Security Interest having at least the priority described in
Section 3.1 and shall defend such Security Interest against the claims and
demands of all Persons whomsoever, in each case subject to Section
3.2(c).
(b)
Such
Grantor will furnish to the Collateral Agent and the Lenders from time to time
statements and schedules further identifying and describing the assets and
property of such Grantor and such other reports in connection therewith as
the
Collateral Agent may reasonably request.
(c)
Subject
to clause (d) below and Section 3.2(c), each Grantor agrees that at any time
and
from time to time, at the expense of such Grantor, it will execute any and
all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements and other documents, including all applicable documents required
under Section 3.2(b)(C)), which may be required under any applicable law, or
which the Collateral Agent or the Required Lenders may reasonably request,
in
order (i) to grant, preserve, protect and perfect the validity and priority
of
the Security Interests created or intended to be created hereby or (ii) to
enable the Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral, including the filing of any financing
or continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Security Interests created hereby and all
applicable documents required under Section 3.2(b)(C), all at the expense of
such Grantor.
(d)
Notwithstanding
anything in this Section 4.1 to the contrary, (i) with respect to any assets
created or acquired by such Grantor after the date hereof that are required
by
the Credit Agreement to be subject to the Lien created hereby or (ii) with
respect to any Person that, subsequent to the date hereof, becomes a Subsidiary
that is required by the Credit Agreement to become a party hereto, the relevant
Grantor after the acquisition or creation thereof shall promptly take all
actions required by the Credit Agreement, this Section 4.1 or Section 4.5
below.
4.2
Damage
or Destruction of Collateral
.
The
Grantors agree promptly to notify the Collateral Agent if any material portion
of the Collateral is damaged or destroyed.
4.3
Notices
.
Each
Grantor will advise the Collateral Agent and the Lenders promptly, in reasonable
detail, of any Lien of which it has knowledge (other than the Security Interests
created hereby or Liens permitted under the Credit Agreement) on any of the
Collateral which would adversely affect, in any material respect, the ability
of
the Collateral Agent to exercise any of its remedies hereunder.
4.4
Changes
in Grantor Information or Status
.
Without
limiting any prohibitions or restrictions on mergers or other transactions
set
forth in the Credit Agreement, no Grantor shall change its name, identity,
corporate structure (e.g. by merger, consolidation, change in corporate form
or
otherwise), type of organization or jurisdiction of organization or, the case
of
any Grantor which is a partnership, the sole place of business and chief
executive office unless it shall have notified the Collateral Agent in writing
at least ten (10) days prior to any such change (or such later date as is
reasonably acceptable to the Collateral Agent), identifying such new proposed
name, identity, corporate structure or jurisdiction of organization a or, the
case of any Grantor which is a partnership, the sole place of business and
chief
executive office, and providing such other information in connection therewith
as the Collateral Agent may reasonably request.
4.5
Acquisition
of Additional Intellectual Property
.
Within
30 days after the end of each Calendar quarter each Grantor shall provide a
list
of any additional applications for or registrations of Intellectual Property
of
such Grantor not previously disclosed to the Collateral Agent including such
information as is necessary for Grantor to make appropriate filings in the
U.S.
Patent and Trademark Office and the US Copyright Office.
5.
Remedial
Provisions
.
5.1
Certain
Matters Relating to Accounts
.
(a)
At
any
time after the occurrence and during the continuance of an Event of Default
and
after giving reasonable notice to the Borrower and any other relevant Grantor,
the Administrative Agent shall have the right, but not the obligation, to
instruct the Collateral Agent to (and upon such instruction, the Collateral
Agent shall) make test verifications of the Accounts in any manner and through
any medium that the Administrative Agent reasonably considers advisable, and
each Grantor shall furnish all such assistance and information as such Agent
may
require in connection with such test verifications. Such Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party.
(b)
The
Collateral Agent hereby authorizes each Grantor to collect such Grantor’s
Accounts and the Collateral Agent may curtail or terminate said authority at
any
time after the occurrence and during the continuance of an Event of Default.
If
required in writing by the Collateral Agent at any time after the occurrence
and
during the continuance of an Event of Default, any payments of Accounts, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within
two
Business Days) deposited by such Grantor in the exact form received, duly
endorsed by such Grantor to the Collateral Agent if required, in a Collateral
Account maintained under the sole dominion and control of and on terms and
conditions reasonably satisfactory to the Collateral Agent, subject to
withdrawal by the Collateral Agent for the account of the Secured Parties only
as provided in Section 5.5, and (ii) until so turned over, shall be held by
such
Grantor in trust for the Collateral Agent and the Secured Parties, segregated
from other funds of such Grantor. Each such deposit of Proceeds of Accounts
shall be accompanied by a report identifying in reasonable detail the nature
and
source of the payments included in the deposit.
(c)
At
the
Collateral Agent’s request at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall deliver to the Collateral
Agent all
original
and other documents evidencing, and relating to, the agreements and transactions
which gave rise to the Accounts, including all original orders, invoices
and
shipping receipts.
(d)
Upon
the
occurrence and during the continuance of an Event of Default, a Grantor shall
not grant any extension of the time of payment of any of the Accounts,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partly, any Person liable for the payment thereof, or allow
any credit or discount whatsoever thereon if the Collateral Agent shall have
instructed the Grantors not to grant or make any such extension, credit,
discount, compromise or settlement under any circumstances during the
continuance of such Event of Default.
5.2
Communications
with Credit Parties; Grantors Remain Liable
.
(a)
The
Collateral Agent in its own name or in the name of others may at any time after
the occurrence and during the continuance of an Event of Default, after giving
reasonable notice to the relevant Grantor of its intent to do so, communicate
with obligors under the Accounts to verify with them to the Collateral Agent’s
satisfaction the existence, amount and terms of any Accounts. The Collateral
Agent shall have the absolute right to share any information it gains from
such
inspection or verification with any Secured Party.
(b)
Upon
the
written request of the Collateral Agent at any time after the occurrence and
during the continuance of an Event of Default, each Grantor shall notify
obligors on the Accounts that the Accounts have been assigned to the Collateral
Agent for the ratable benefit of the Secured Parties and that payments in
respect thereof shall be made directly to the Collateral Agent.
(c)
Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Accounts to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with the terms
of any agreement giving rise thereto. Neither the Collateral Agent nor any
Secured Party shall have any obligation or liability under any Account (or
any
agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Collateral Agent or any Secured Party of any
payment relating thereto, nor shall the Collateral Agent or any Secured Party
be
obligated in any manner to perform any of the obligations of any Grantor under
or pursuant to any Account (or any agreement giving rise thereto), to make
any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
5.3
Proceeds
to be Turned Over To Collateral Agent
.
In
addition to the rights of the Collateral Agent and the Secured Parties specified
in Section 5.1 with respect to payments of Accounts, if an Event of Default
shall occur and be continuing and the Collateral Agent so requires by notice
in
writing to the relevant Grantor (it being understood that the exercise of
remedies by the Secured Parties in connection with an Event of Default under
Section 11.5 of the Credit Agreement shall be deemed to constitute a request
by
the Collateral Agent for the purposes of this sentence and in such
circumstances, no such written notice shall be required), all
Proceeds
received by any Grantor consisting of cash, checks and other near cash items
shall be held by such Grantor in trust for the Collateral Agent and the Secured
Parties, segregated from other funds of such Grantor, and shall, forthwith
upon
receipt by such Grantor, be turned over to the Collateral Agent in the exact
form received by such Grantor (duly endorsed by such Grantor to the Collateral
Agent, if required). All Proceeds received by the Collateral Agent hereunder
shall be held by the Collateral Agent in a Collateral Account maintained
under
its dominion and control and on terms and conditions reasonably satisfactory
to
the Collateral Agent. All Proceeds while held by the Collateral Agent in
a
Collateral Account (or by such Grantor in trust for the Collateral Agent
and the
Secured Parties) shall continue to be held as collateral security for all
the
Obligations and shall not constitute payment thereof until applied as provided
in Section 5.4.
5.4
Application
of Proceeds
.
The
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral as well as any Collateral consisting of cash, at any time after
receipt in the order specified in Section 11 of the Credit Agreement. Upon
any
sale of the Collateral by the Collateral Agent (including pursuant to a power
of
sale granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any
part of the purchase money paid over to the Collateral Agent or such officer
or
be answerable in any way for the misapplication thereof.
5.5
Code
and Other Remedies
.
If an
Event of Default shall occur and be continuing, the Collateral Agent may
exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the UCC or any other applicable
law or in equity and also may with notice to the relevant Grantor, sell the
Collateral or any part thereof in one or more parcels at public or private
sale
or sales, at any exchange, broker’s board or office of the Collateral Agent or
any Lender or elsewhere for cash or on credit or for future delivery at such
price or prices and upon such other terms as are commercially reasonable
irrespective of the impact of any such sales on the market price of the
Collateral. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
of Collateral to Persons who will represent and agree that they are purchasing
the Collateral for their own account for investment and not with a view to
the
distribution or sale thereof, and, upon consummation of any such sale, the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of any Grantor, and each Grantor hereby waives (to the extent
permitted by law) all rights of redemption, stay and/or appraisal that it now
has or may at any time in the future have under any rule of law or statute
now
existing or hereafter enacted. The Collateral Agent and any Secured Party shall
have the right upon any such public sale, and, to the extent permitted by law,
upon any such private sale, to purchase the whole or any part of the Collateral
so sold, and the Collateral Agent or such Secured Party may pay the purchase
price by crediting the amount thereof against the Obligations. Each Grantor
agrees that, to the extent notice of sale shall be required by law, at least
ten
days’ notice to such Grantor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale
of
Collateral regardless of notice of sale having
been
given. The Collateral Agent may adjourn any public or private sale from time
to
time by announcement at the time and place fixed therefor, and such sale
may,
without further notice, be made at the time and place to which it was so
adjourned. To the extent permitted by law, each Grantor hereby waives any
claim
against the Collateral Agent arising by reason of the fact that the price
at
which any Collateral may have been sold at such a private sale was less than
the
price that might have been obtained at a public sale, even if the Collateral
Agent accepts the first offer received and does not offer such Collateral
to
more than one offeree. Each Grantor further agrees, at the Collateral Agent’s
request to assemble the Collateral and make it available to the Collateral
Agent, at places which the Collateral Agent shall reasonably select, whether
at
such Grantor’s premises or elsewhere. The Collateral Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 5.5 in accordance
with the provisions of Section 5.4.
5.6
Deficiency
.
Each
Grantor shall remain liable for any deficiency if the proceeds of any sale
or
other disposition of the Collateral are insufficient to pay its Obligations
and
the fees and disbursements of any attorneys employed by the Collateral Agent
or
any Secured Party to collect such deficiency.
5.7
Amendments,
etc. with Respect to the Obligations; Waiver of Rights
.
Each
Grantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Grantor and without notice to or further
assent by any Grantor, (a) any demand for payment of any of the Obligations
made
by the Collateral Agent or any other Secured Party may be rescinded by such
party and any of the Obligations continued, (b) the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Credit Agreement, the other Credit
Documents and any other documents executed and delivered in connection therewith
and the Secured Hedge Agreements and any other documents executed and delivered
in connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Administrative Agent (or the Required Lenders, as
the
case may be, or, in the case of any Secured Hedge Agreement, the Hedge Bank
party thereto) may deem advisable from time to time, and (d) any collateral
security, guarantee or right of offset at any time held by the Collateral Agent
or any other Secured Party for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Collateral Agent nor
any
other Secured Party shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Security Agreement or any property subject thereto. When making any demand
hereunder against any Grantor, the Collateral Agent or any other Secured Party
may, but shall be under no obligation to, make a similar demand on any Grantor
or any other Person, and any failure by the Collateral Agent or any other
Secured Party to make any such demand or to collect any payments from any
Borrower or any Grantor or any other Person or any release of any Borrower
or
any Grantor or any other Person shall not relieve any Grantor in respect of
which a demand or collection is not made or any Grantor not so released of
its
several obligations or liabilities hereunder, and shall not impair or affect
the
rights and remedies, express or implied, or as a matter of law, of the
Collateral Agent or any other Secured Party against any Grantor. For the
purposes hereof “demand” shall include the commencement and continuance of any
legal proceedings.
5.8
License
to Use Intellectual Property
.
For the
purpose of enabling the Collateral Agent, during the continuance of an Event
of
Default, to exercise rights and remedies hereunder at such time as the
Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, each Grantor hereby grants to the Collateral
Agent, to the extent such Grantor has the right to do so, an irrevocable,
assignable, non-exclusive license to use, license or sublicense any of the
Intellectual Property now owned or held, or hereafter acquired, by such Grantor,
wherever the same may be located. To the extent permitted, such license shall
include access to all media in which any of the licensed items may be recorded
or stored and to all computer programs used for the compilation or printout
hereof.
6.
The
Collateral Agent
.
6.1
Collateral
Agent’s Appointment as Attorney-in-Fact, etc
.
(a)
Each
Grantor hereby appoints, which appointment is irrevocable and coupled with
an
interest, effective upon the occurrence and during the continuance of an Event
of Default, the Collateral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and
in
the name of such Grantor or otherwise, for the purpose of carrying out the
terms
of this Security Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or desirable
to accomplish the purposes of this Security Agreement, and, without limiting
the
generality of the foregoing, each Grantor hereby gives the Collateral Agent
the
power and right, on behalf of such Grantor, either in the Collateral Agent’s
name or in the name of such Grantor or otherwise, without assent by such
Grantor, to do any or all of the following, in each case after the occurrence
and during the continuance of an Event of Default and after written notice
by
the Collateral Agent of its intent to do so:
(i)
take
possession of and endorse and collect any checks, drafts, notes, acceptances
or
other instruments for the payment of moneys due under any Account or with
respect to any other Collateral and file any claim or take any other action
or
proceeding in any court of law or equity or otherwise deemed appropriate by
the
Collateral Agent for the purpose of collecting any and all such moneys due
under
any Account or with respect to any other Collateral whenever
payable;
(ii)
in
the
case of any Intellectual Property, execute and deliver, and have recorded,
any
and all agreements, instruments, documents and papers as the Collateral Agent
may request to evidence the Collateral Agent’s and the Secured Parties’ Security
Interest in such Intellectual Property and the goodwill and general intangibles
of such Grantor relating thereto or represented thereby;
(iii)
pay
or
discharge taxes and Liens levied or placed on or threatened against the
Collateral;
(iv)
execute,
in connection with any sale provided for in Section 5.5, any endorsements,
assignments or other instruments of conveyance or transfer with respect to
the
Collateral;
(v)
obtain
and adjust insurance required to be maintained by such Grantor pursuant to
Section 9.3 of the Credit Agreement;
(vi)
direct
any party liable for any payment under any of the Collateral to make payment
of
any and all moneys due or to become due thereunder directly to the Collateral
Agent or as the Collateral Agent shall direct;
(vii)
ask
or
demand for, collect and receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Collateral;
(viii)
sign
and
endorse any invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications, notices
and other documents in connection with any of the Collateral;
(ix)
commence
and prosecute any suits, actions or proceedings at law or in equity in any
court
of competent jurisdiction to collect the Collateral or any portion thereof
and
to enforce any other right in respect of any Collateral;
(x)
defend
any suit, action or proceeding brought against such Grantor with respect to
any
Collateral (with such Grantor’s consent to the extent such action or its
resolution could materially affect such Grantor or any of its affiliates in
any
manner other than with respect to its continuing rights in such
Collateral);
(xi)
settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Collateral Agent may deem
appropriate (with such Grantor’s consent to the extent such action or its
resolution could materially affect such Grantor or any of its affiliates in
any
manner other than with respect to its continuing rights in such
Collateral);
(xii)
assign
any Intellectual Property, throughout the world for such term or terms, on
such
conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and
(xiii)
generally,
sell, transfer, pledge and make any agreement with respect to or otherwise
deal
with any of the Collateral as fully and completely as though the Collateral
Agent were the absolute owner thereof for all purposes, and do, at the
Collateral Agent’s option and such Grantor’s expense, at any time, or from time
to time, all acts and things that the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Collateral Agent’s and
the Secured Parties’ Security Interests therein and to effect the intent of this
Security Agreement, all as fully and effectively as such Grantor might
do.
Anything
in this Section 6.1(a) to the contrary notwithstanding, the Collateral Agent
agrees that it will not exercise any rights under the power of attorney provided
for in this Section 6.1(a) unless an Event of Default shall have occurred and
be
continuing.
(b)
If
any
Grantor fails to perform or comply with any of its agreements contained herein,
the Collateral Agent, at its option, but without any obligation so to do, may
perform or comply, or otherwise cause performance or compliance, with such
agreement.
(c)
The
expenses of the Collateral Agent incurred in connection with actions undertaken
as provided in this Section 6.1, together with interest thereon at a rate per
annum equal to the highest rate per annum at which interest would then be
payable on any category of past due ABR Loans under the Credit Agreement, from
the date of payment by the Collateral Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Collateral Agent
on
demand.
(d)
Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be
done by virtue hereof. All powers, authorizations and agencies contained in
this
Security Agreement are coupled with an interest and are irrevocable until this
Security Agreement is terminated and the Security Interests created hereby
are
released.
6.2
Duty
of Collateral Agent
.
The
Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Agent accords its
own
property. Neither the Collateral Agent, any Secured Party nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
The
powers conferred on the Collateral Agent and the Secured Parties hereunder
are
solely to protect the Collateral Agent’s and the Secured Parties’ interests in
the Collateral and shall not impose any duty upon the Collateral Agent or any
Secured Party to exercise any such powers. The Collateral Agent and the Secured
Parties shall be accountable only for amounts that they actually receive as
a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor
for
any act or failure to act hereunder, except for their own gross negligence
or
willful misconduct.
6.3
Authority
of Collateral Agent
.
Each
Grantor acknowledges that the rights and responsibilities of the Collateral
Agent under this Security Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of
any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Security Agreement shall, as between
the Collateral Agent and the Secured Parties, be governed by the Credit
Agreement, and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Collateral Agent and the Grantors,
the Collateral Agent shall be conclusively presumed to be acting as agent for
the applicable Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
6.4
Security
Interest Absolute
.
All
rights of the Collateral Agent hereunder, the Security Interest and all
obligations of the Grantors hereunder shall be absolute and
unconditional.
6.5
Continuing
Security Interest; Assignments Under the Credit Agreement;
Release
.
(a)
This
Security Agreement shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each Grantor and the
successors and assigns thereof and shall inure to the benefit of the Collateral
Agent and the other Secured Parties and their respective successors, indorsees,
transferees and assigns until all Obligations under the Credit Documents (other
than any contingent indemnity obligations not then due) and the obligations
of
each Grantor under this Security Agreement shall have been satisfied by payment
in full and the Commitments shall be terminated, notwithstanding that from
time
to time during the term of the Credit Agreement and any Secured Hedge Agreement
the Credit Parties may be free from any Obligations.
(b)
A
Subsidiary Grantor shall automatically be released from its obligations
hereunder if it ceases to be a Guarantor in accordance with Section 13.1 of
the
Credit Agreement.
(c)
The
Security Interest granted hereby in any Collateral shall automatically be
released (i) to the extent provided in Section 13.1 of the Credit Agreement
and
(ii) upon the effectiveness of any written consent to the release of the
security interest granted hereby in such Collateral pursuant to Section 13.1
of
the Credit Agreement. Any such release in connection with any sale, transfer
or
other disposition of such Collateral shall result in such Collateral being
sold,
transferred or disposed of, as applicable, free and clear of the Lien and
Security Interest created hereby.
(d)
In
connection with any termination or release pursuant to paragraph (a), (b) or
(c), the Collateral Agent shall execute and deliver to any Grantor, at such
Grantor’s expense, all documents that such Grantor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 6.5 shall be without recourse to or warranty by the
Collateral Agent.
6.6
Reinstatement
.
Each
Grantor further agrees that, if any payment made by any Credit Party or other
Person and applied to the Obligations is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of Collateral
are
required to be returned by any Secured Party to such Credit Party, its estate,
trustee, receiver or any other party, including any Grantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then,
to
the extent of such payment or repayment, any Lien or other Collateral securing
such liability shall be and remain in full force and effect, as fully as if
such
payment had never been made or, if prior thereto the Lien granted hereby or
other Collateral securing such liability hereunder shall have been released
or
terminated by virtue of such cancellation or surrender), such Lien or other
Collateral shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect any Lien or other Collateral securing the obligations of any
Grantor in respect of the amount of such payment.
6.7
Further
Assurances
.
Subject
to Section 3.2(c) hereof, each Grantor agrees that at any time and from time
to
time, at the expense of such Grantor, it will execute or otherwise authorize
the
filing of any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust
and other documents), which may be required under any applicable law, or which
the Collateral Agent or the Administrative Agent may reasonably request, in
order (x) to perfect and protect any pledge, assignment or security interest
granted or purported to be granted hereby (including the priority thereof)
or
(y) to enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
7.
Collateral
Agent As Agent
.
(a)
Citicorp
has been appointed to act as the Collateral Agent under the Credit Agreement,
by
the Lenders under the Credit Agreement and, by their acceptance of the benefits
hereof, the other Secured Parties. The Collateral Agent shall be obligated,
and
shall have the right hereunder, to make demands, to give notices, to exercise
or
refrain from exercising any rights, and to take or refrain from taking any
action (including the release or substitution of Collateral), solely in
accordance with this Security Agreement and the Credit Agreement,
provided
that the
Collateral Agent shall exercise, or refrain from exercising, any remedies
provided for in Section 5 in accordance with the instructions of Required
Lenders. In furtherance of the foregoing provisions of this Section 7(a), each
Secured Party, by its acceptance of the benefits hereof, agrees that it shall
have no right individually to realize upon any of the Collateral hereunder,
it
being understood and agreed by such Secured Party that all rights and remedies
hereunder may be exercised solely by the Collateral Agent for the ratable
benefit of the applicable Lenders and Secured Parties in accordance with the
terms of this Section 7(a).
(b)
The
Collateral Agent shall at all times be the same Person that is the Collateral
Agent under the Credit Agreement. Written notice of resignation by the
Collateral Agent pursuant to Section 12.9 of the Credit Agreement shall also
constitute notice of resignation as Collateral Agent under this Security
Agreement; removal of the Collateral Agent shall also constitute removal under
this Security Agreement; and appointment of a Collateral Agent pursuant to
Section 12.9 of the Credit Agreement shall also constitute appointment of a
successor Collateral Agent under this Security Agreement. Upon the acceptance
of
any appointment as Collateral Agent under Section 12.9 of the Credit Agreement
by a successor Collateral Agent, that successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Collateral Agent under this Security Agreement,
and
the retiring or removed Collateral Agent under this Security Agreement shall
promptly (i) transfer to such successor Collateral Agent all sums, securities
and other items of Collateral held hereunder, together with all records and
other documents necessary or appropriate in connection with the performance
of
the duties of the successor Collateral Agent under this Security Agreement,
and
(ii) execute and deliver to such successor Collateral Agent or otherwise
authorize the filing of such amendments to financing statements and take such
other actions, as may be necessary or appropriate in connection with the
assignment to such successor Collateral Agent of the Security Interests created
hereunder, whereupon such retiring or removed Collateral Agent shall be
discharged from its duties and obligations under this Security Agreement. After
any retiring or removed Collateral Agent’s resignation or removal hereunder as
Collateral Agent, the provi-
sions
of
this Security Agreement shall inure to its benefit as to any actions taken
or
omitted to be taken by it under this Security Agreement while it was Collateral
Agent hereunder.
(c)
The
Collateral Agent shall not be deemed to have any duty whatsoever with respect
to
any Secured Party that is a counterparty to a Secured Hedge Agreement the
obligations under which constitute Obligations, unless it shall have received
written notice in form and substance satisfactory to the Collateral Agent from
a
Grantor or any such Secured Party as to the existence and terms of the
applicable Secured Hedge Agreement.
8.
Miscellaneous
.
8.1
Amendments
in Writing
.
None of
the terms or provisions of this Security Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by
the affected Grantor and the Collateral Agent in accordance with Section 13.1
of
the Credit Agreement.
8.2
Notices
.
All
notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder
to any Subsidiary Grantor shall be given to it in care of the Borrower at the
Borrower’s address set forth in Section 13.2 of the Credit
Agreement.
8.3
No
Waiver by Course of Conduct; Cumulative Remedies
.
Neither
the Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise
be
deemed to have waived any right or remedy hereunder or to have acquiesced in
any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of
the
Collateral Agent or any other Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent or any other Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right
or
remedy that the Collateral Agent or such other Secured Party would otherwise
have on any future occasion. The rights, remedies, powers and privileges herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
8.4
Enforcement
Expenses; Indemnification
.
(a)
Each
Grantor agrees to pay any and all reasonable out of pocket expenses (including
all reasonable fees and disbursements of counsel) that may be paid or incurred
by any Secured Party in enforcing, or obtaining advice of counsel in respect
of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, such Grantor under
this Security Agreement.
(b)
Each
Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes that may be
payable or determined to be
payable
with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Security Agreement.
(c)
Each
Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Security Agreement to the extent a
Borrower would be required to do so pursuant to Section 13.5 of the Credit
Agreement.
(d)
The
agreements in this Section 8.4 shall survive repayment of the Obligations and
all other amounts payable under the Credit Agreement and the other Credit
Documents.
8.5
Successors
and Assigns
.
The
provisions of this Security Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Grantor may assign, transfer or delegate any
of
its rights or obligations under this Security Agreement without the prior
written consent of the Collateral Agent except pursuant to a transaction
permitted by the Credit Agreement.
8.6
Counterparts
.
This
Security Agreement may be executed by one or more of the parties to this
Security Agreement on any number of separate counterparts (including by
facsimile or other electronic transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the
copies of this Security Agreement signed by all the parties shall be lodged
with
the Collateral Agent and the Borrower.
8.7
Severability
.
Any
provision of this Security Agreement that is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction. The parties hereto shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of
the invalid, illegal or unenforceable provisions.
8.8
Section
Headings
.
The
Section headings used in this Security Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
8.9
Integration
.
This
Security Agreement together with the other Credit Documents represents the
agreement of each of the Grantors with respect to the subject matter hereof
and
there are no promises, undertakings, representations or warranties by the
Collateral Agent or any other Secured Party relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Credit
Documents.
8.10
GOVERNING
LAW
.
THIS
SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
8.11
Submission
To Jurisdiction Waivers
.
Each
party hereto hereby irrevocably and unconditionally:
(a)
submits
for itself and its property in any legal action or proceeding relating to this
Security Agreement and the other Credit Documents to which it is a party, or
for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b)
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address referred
to in Section 8.2 or at such other address of which such Person shall have
been
notified pursuant thereto;
(d)
agrees
that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by
law
or shall limit the right of any party hereto (or any Secured Party) to sue
in
any other jurisdiction; and
(e)
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section 8.11
any
special, exemplary, punitive or consequential damages.
8.12
Acknowledgments
.
Each
party hereto hereby acknowledges that:
(a)
it
has
been advised by counsel in the negotiation, execution and delivery of this
Security Agreement and the other Credit Documents to which it is a
party;
(b)
neither
the Collateral Agent nor any other Agent or Secured Party has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Security Agreement or any of the other Credit Documents, and the
relationship between the Grantors, on the one hand, and the Collateral Agent,
each other Agent and the other Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c)
no
joint
venture is created hereby or by the other Credit Documents or otherwise exists
by virtue of the transactions contemplated hereby among the Lenders, the Agents
and any other Secured Party or among the Grantors and the Lenders, the Agents
and any other Secured Party.
8.13
Additional
Grantors
.
Each
Subsidiary of the Borrower that is required to become a party to this Security
Agreement pursuant to Section 9.11 of the Credit Agreement shall become a
Grantor, with the same force and effect as if originally named as a Grantor
herein,
for all purposes of this Security Agreement upon execution and delivery by
such
Subsidiary of a written supplement substantially in the form of
Annex
A
hereto.
The execution and delivery of any instrument adding an additional Grantor
as a
party to this Security Agreement shall not require the consent of any other
Grantor hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new Grantor
as a party to this Security Agreement.
8.14
WAIVER
OF JURY TRIAL
.
EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15
Intercreditor
Agreement
.
Notwithstanding
anything herein to the contrary, the liens and security interests granted to
the
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by the Collateral Agent hereunder, in each case, with respect to the
Revolving Credit Collateral are subject to the limitations and provisions of
the
Intercreditor Agreement, dated as of July 6, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Intercreditor
Agreement
”),
among
The CIT Group/Business Credit, Inc., as ABL Collateral Agent, the Collateral
Agent, and certain other Persons party or that may become party thereto from
time to time, and by the Grantors identified therein. In the event of any
conflict between the terms of the Intercreditor Agreement and the terms of
this
Agreement with respect to the Revolving Credit Collateral, the terms of the
Intercreditor Agreement shall govern and control. Any provision of this
Agreement to the contrary notwithstanding, (a) no Grantor shall be required
to
act or refrain from acting in a manner that is inconsistent with the terms
and
provisions of the Intercreditor Agreement and (b) prior to the satisfaction
and
discharge in full of the Revolving Credit Obligations (as defined in the
Intercreditor Agreement), no Grantor shall be required to act or refrain from
acting with respect to any Revolving Credit Collateral if compliance by such
Grantor with such requirement would result in a breach of or constitute a
default under any Revolving Credit Loan Document (as defined in the
Intercreditor Agreement).
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to he
duly
executed and delivered by its duly authorized officer or other representative
as
of the day and year first above written.
DOLLAR
GENERAL
CORPORATION, as
Grantor
By:
/s/ Wade
Smith
DG
RETAIL, LLC, as
Grantor
By:
/s/
Wade
Smith
|
Dollar
|
General
Co
rporation
|
Wade Smith
Treasurer
DOLGENCORP,
INC., as
Grantor
By:
/s/ Wade
Smith
DOLGENCORP
OF NEW
YORK, INC., as
Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
S
-1
Security
Agreement Signature Pages
DG
TRANSPORTATION,
INC., as Grantor
By:
/s/ Wade
Smith
DG
LOGISTICS, LLC, as
Grantor
By:
/s/
Wade
Smith
DG
Transportation,
Inc. as Manager
Wade
Smith
Treasurer
DGC
PROPERTIES LLC,
as Grantor
Dolgencorp, Inc., as sole member
Wade Smith
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as
Grantor
SUN-DOLLAR,
L.P., as
Grantor
By:
/s/ Wade Smith
South
Boston
Holdings, Inc. general partner
Wade Smith
Treasurer
Dolgencorp, Inc. l
imited
partner
Wade Smith
Treasurer
S
-2
Security
Agreement Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Grantor
By:
Sun-Dollar,
L.P. (sole member)
By:
/s/ Wade Smith
South Boston Holdings, Inc. -
-
its
general
partner
Wade Smith
Treasurer
DG
PROMOTIONS, INC.,
as Grantor
By:
/s/ Wade Smith
Name: Wade Smith
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Grantor
By:
/s/ Wade Smith
Name:
Wade Smith
Title:
Treasurer
S
-3
Security
Agreement Signature Pages
DOLLAR
GENERAL
PARTNERS, as Grantor
By:
/s/ Wade
Smith
Dollar
General Corporation
-
its
authorized
general
partner
Wade Smith
Treasurer
/s/ Wade Smith
By:
Dollar
General Merchandising, Inc.
—
its
general partner
Wade
Smith
Treasurer
DGC
PROPERTIES OF
KENTUCKY LLC,
as
Grantor
By:
/s/ Wade
Smith
Dollar
General
Partners as sole member
|
|
Dollar
General Corporation -
its
authorized general partner
|
Wade
Smith
Treasurer
S
-4
Security
Agreement Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By:
/s/
Jeffrey Nitz
Name: Jeffrey Nitz
Title:
Director
S-5
Security
Agreement Signature Pages
SCHEDULE
I TO THE
SECURITY
AGREEMENT
Filing
Offices
DEBTOR
|
FILING
OFFICE
|
Dollar
General Corporation
|
Tennessee
SOS
|
DG
Retail, LLC
|
Tennessee
SOS
|
DG
Transportation, Inc.
|
Tennessee
SOS
|
DG
Logistics, LLC
|
Tennessee
SOS
|
DG
Promotions, Inc.
|
Tennessee
SOS
|
Dollar
General Merchandising, Inc.
|
Tennessee
SOS
|
Dollar
General Partners
|
Tennessee
SOS
|
Dolgencorp,
Inc.
|
Kentucky
SOS
|
Dolgencorp
of New York, Inc.
|
Kentucky
SOS
|
Dolgencorp
of Texas, Inc.
|
Kentucky
SOS
|
DGC
Properties LLC
|
Delaware
SOS
|
South
Boston Holdings, Inc.
|
Delaware
SOS
|
South
Boston FF&E, LLC
|
Delaware
SOS
|
Dollar
General Investment, Inc.
|
Delaware
SOS
|
DGC
Properties of Kentucky LLC
|
Delaware
SOS
|
Sun-Dollar,
L.P.
|
California
SOS
|
SCHEDULE
II TO THE
SECURITY
AGREEMENT
Grantor
Information
Name
of Debtor/Grantor
|
Type
of Organization
|
Jurisdiction
of Organization/Formation
|
F.E.I.N.
/ T.I.N.
|
Organizational
Identification Number
|
Dollar
General Corporation
|
Corporation
|
Tennessee
|
61-0502302
|
Control
Number 0351611
|
DG
Retail, LLC
|
Limited
Liability Company
|
Tennessee
|
36-4577242
|
Control
Number 0498077
|
Dolgencorp,
Inc.
|
Corporation
|
Kentucky
|
61-0852764
|
Control
Number 0017665
|
Dolgencorp
of New York, Inc.
|
Corporation
|
Kentucky
|
62-1829863
|
Control
Number 0499060
|
Dolgencorp
of Texas, Inc.
|
Corporation
|
Kentucky
|
61-1193136
|
Control
Number 0268821
|
DG
Transportation, Inc.
|
Corporation
|
Tennessee
|
37-1517488
|
Control
Number 0486177
|
DG
Logistics, LLC
|
Limited
Liability Company
|
Tennessee
|
62-1805098
|
Control
Number 0381549
|
DGC
Properties LLC
|
Limited
Liability Company
|
Delaware
|
36-4498859
|
Control
Number 3530337
|
South
Boston Holdings, Inc.
|
Corporation
|
Delaware
|
20-5220571
|
Control
Number 4179362
|
Sun-Dollar,
L.P.
|
Limited
Partnership
|
California
|
95-4629930
|
199711200016
|
South
Boston FF&E, LLC
|
Limited
Liability Company
|
Delaware
|
26-0411224
|
Control
Number 4287970
|
DG
Promotions, Inc.
|
Corporation
|
Tennessee
|
62-1792083
|
Control
Number 0375322
|
Dollar
General Investment, Inc.
|
Corporation
|
Delaware
|
48-1268966
|
Control
Number 3535431
|
Dollar
General Merchandising, Inc.
|
Corporation
|
Tennessee
|
82-0577749
|
Control
Number: 0437967
|
Dollar
General Partners
|
General
Partnership
|
Kentucky
|
61-1193137
|
Control
Number 0589039
|
DGC
Properties of Kentucky LLC
|
Limited
Liability Company
|
Delaware
|
37-1432210
|
Control
Number 3530336
|
SCHEDULE
1 TO THE
SECURITY
AGREEMENT
MATERIAL
COPYRIGHT LICENSES
None.
SCHEDULE
2 TO THE
SECURITY
AGREEMENT
COPYRIGHTS
Registered
Owner/Grantor
|
Title
|
Registration
Number
|
Dollar
General Intellectual Property LP
|
Dollar
General
|
VA-1-074-378
|
Dollar
General Intellectual Property LP
|
Birdhouse
in the sky
|
VA-1-084-913
|
Dollar
General Intellectual Property LP
|
Play
ball
|
VA-1-084-914
|
Dollar
General Intellectual Property LP
|
Southern
magnolia
|
VA-1-084915
|
Dollar
General Intellectual Property LP
|
Greater
Cumberland logo
|
VA-1-101-214
|
Dollar
General Intellectual Property LP
|
Two
large magnolias design
|
VA-1-104-452
|
Dollar
General Intellectual Property LP
|
Two
magnolias within a circle
|
VAu-332-786
|
Dollar
General Intellectual Property LP
|
Six
magnolias in a ring
|
VAu-387-072
|
Dollar
General Intellectual Property LP
|
Two
magnolias
|
VAu-387-073
|
Dollar
General Intellectual Property LP
|
Four
magnolias in a band
|
VAu-439-205
|
Dollar
General Intellectual Property LP
|
Two
magnolias within a circle
|
VAu-501-223
|
Dollar
General Intellectual Property LP
|
Sun
& shade, you’ve got it made
|
VAu-502-998
|
Dollar
General Intellectual Property LP
|
Iris
collection
|
VAu-515-355
|
Dollar
General Intellectual Property LP
|
Beautiful
day
|
VAu-515-356
|
Dollar
General Intellectual Property LP
|
Snowman
family
|
VAu-515-357
|
Dollar
General Intellectual Property LP
|
Checkered
bear design
|
VAu-515-358
|
Dollar
General Intellectual Property LP
|
Fish
bowl
|
VAu-515-359
|
Dollar
General Intellectual Property LP
|
Snow
day
|
VAu-515-360
|
Dollar
General Intellectual Property LP
|
Weather
vane
|
VAu-515-361
|
Dollar
General Intellectual Property LP
|
Americana
Christmas
|
VAu-515-362
|
Dollar
General Intellectual Property LP
|
American
flag
|
VAu-515-363
|
Dollar
General Intellectual Property LP
|
Summertime
watermelon
|
VAu-515-364
|
SCHEDULE
3 TO THE
SECURITY
AGREEMENT
MATERIAL
PATENT LICENSES
None.
SCHEDULE
4 TO THE
SECURITY
AGREEMENT
PATENTS
None.
SCHEDULE
5 TO THE
SECURITY
AGREEMENT
MATERIAL
TRADEMARK LICENSES
None.
SCHEDULE
6 TO THE
SECURITY
AGREEMENT
TRADEMARKS
U.S.
Trademarks
Debtor/Grantor
|
Title
|
Serial
/ Registration No.
|
Dollar
General Merchandising, Inc.
|
SAVE
TIME. SAVE MONEY. EVERY DAY.
|
3,217,925
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
3,174,687
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
3,159,752
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
3,118,060
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL AND DESIGN
|
2,947,983
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,982
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,981
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,979
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL MARKET
|
2,912,893
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,673,316
|
Dollar
General Merchandising, Inc.
|
KISSY
KISSY HUG HUG
|
2,599,690
|
Dollar
General Merchandising, Inc.
|
FINE
& DANDY
|
2,522,829
|
Dollar
General Merchandising, Inc.
|
VICTORIAN
BEAUTY
|
2,576,769
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,556,093
|
Dollar
General Merchandising, Inc.
|
SAVE
TIME. SAVE MONEY. DOLLAR GENERAL.
|
2,602,816
|
Dollar
General Merchandising, Inc.
|
HOLIDAY
STYLE
|
2,614,861
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
2,679,921
|
Dollar
General Merchandising, Inc.
|
DG
GUARANTEE
|
2,433,937
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
2,412,180
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
2,355,987
|
Dollar
General Merchandising, Inc.
|
DG
|
2,385,253
|
Dollar
General Merchandising, Inc.
|
MY
PAL BUILDING BLOCKS FOR LITTLE WARDROBES AND DESIGN
|
2,546,014
|
Dollar
General Merchandising, Inc.
|
KITCHEN
ELEMENTS
|
2,589,304
|
Dollar
General Merchandising, Inc.
|
A
BETTER LIFE FOR EVERYONE!
|
2,564,327
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
2,840,528
|
Dollar
General Merchandising, Inc.
|
GOT
A MINUTE? GET A LOT!
|
2,534,603
|
Dollar
General Merchandising, Inc.
|
POWERIZE
|
2,402,825
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL EVERY DAY AND DESIGN
|
2,478,427
|
Dollar
General Merchandising, Inc.
|
DOLLAR
$1 EVERY DAY AND DESIGN
|
2,443,284
|
Dollar
General Merchandising, Inc.
|
STOW
AWAYS
|
2,418,285
|
Dollar
General Merchandising Inc.
|
COUNTRY
ELEMENTS
|
2,517,967
|
|
|
|
Dollar
General Merchandising, Inc.
|
EZSTORE
|
78/642,660
|
Dollar
General Merchandising, Inc.
|
SUNRISE
HILL
|
78/467,058
|
Dollar
General Merchandising, Inc.
|
DG
|
2,499,318
|
Dollar
General Merchandising, Inc.
|
PRO
LINE
|
1,433,962
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL EVERY DAY
|
2,478,358
|
Dollar
General Merchandising, Inc.
|
FAMILY
TRADITIONS
|
2,553,059
|
Dollar
General Merchandising, Inc.
|
FAMILY
TRADITIONS
|
2.488,144
|
Dollar
General Merchandising, Inc.
|
DG
GUARANTEE
|
2,702,790
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
2,654,637
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,400,609
|
Dollar
General Merchandising, Inc.
|
CROSSBOW
|
2,327,189
|
Dollar
General Merchandising, Inc.
|
CROSSBOW
|
2,388,304
|
|
|
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,317,225
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS AND DESIGN
|
2,258,138
|
Dollar
General Merchandising, Inc.
|
DG
|
2,130,040
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL AND DESIGN
|
1,972,697
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
1,705,134
|
Dollar
General Merchandising, Inc.
|
PENNY
LANE
|
1,726,693
|
Dollar
General Merchandising, Inc.
|
LAURA
KATHERINE
|
1,735,722
|
Dollar
General Merchandising, Inc.
|
THE
TOWN’S MOST UNUSUAL STORE
|
1,642,403
|
Dollar
General Merchandising, Inc.
|
EVERY
DAY IS DOLLAR DAY!...AT YOUR DOLLAR GENERAL STORE
|
1,651,816
|
Dollar
General Merchandising, Inc.
|
GENERAL
STORY
|
1,494,217
|
Dollar
General Merchandising, Inc.
|
S
STORY
|
1,493,097
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
0,881,060
|
Dollar
General Merchandising, Inc.
|
UNI-LAB
|
1,952,315
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS
|
1,752,567
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
1,791,692
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS
|
1,424,943
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL OUR NAME SAYS IT ALL AND DESIGN
|
2,210,926
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
2,498,548
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
833,446
|
Foreign
Trademarks
Title
|
Serial/
Registration No.
|
Country
|
DOLLAR
GENERAL
|
1,241,198
|
Canada
|
DOLLAR
GENERAL
|
3,846,573
|
European
Union (CTM)
|
DOLLAR
GENERAL
|
2004B01969
|
Hong
Kong
|
DOLLAR
GENERAL in
Chinese
Characters
|
300042443
|
Hong
Kong
|
DOLLAR
GENERAL
|
477,587
|
Mexico
|
DOLLAR
GENERAL
|
892,930
|
Mexico
|
EXHIBIT
4.5
PLEDGE
AGREEMENT dated as of July 6, 2007, among Dollar General Corporation, a
Tennessee corporation (the “
Borrower
”),
each
of the Subsidiaries of the Borrower listed on the signature pages hereto or
that
becomes a party hereto pursuant to Section 9 hereof (each such Subsidiary being
a “
Subsidiary
Pledgor
”
and,
collectively, the “
Subsidiary
Pledgors
”;
the
Subsidiary Pledgors and the Borrower are referred to collectively as the
“
Pledgors
”)
and
Citicorp North America, Inc., as Collateral Agent (in such capacity, the
“
Collateral
Agent
”)
under
the Credit Agreement (as defined below) for the benefit of the Secured
Parties.
W
I T
N E S S E T H:
WHEREAS,
reference is made to that certain Credit Agreement, dated as of the date hereof,
(as the same may be amended, restated, supplemented or otherwise modified,
refinanced or replaced from time to time, the “
Credit
Agreement
”)
among
the Borrower, the lenders or other financial institutions or entities from
time
to time party thereto (the “
Lenders
”),
and
Citicorp North America, Inc., as Administrative Agent and Collateral Agent;
WHEREAS,
(a) pursuant to the Credit Agreement, among other things, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and subject to
the
conditions set forth therein and (b) one or more Hedge Banks may from time
to
time enter into Secured Hedge Agreements with the Borrower and/or its
Subsidiaries;
WHEREAS,
pursuant to the Guarantee, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “
Guarantee
”),
each
Subsidiary Pledgor has agreed to unconditionally and irrevocably guarantee,
as
primary obligor and not merely as surety, to the Secured Parties, the prompt
and
complete payment and performance when due (whether at the stated maturity,
by
acceleration or otherwise) of the Obligations (as defined below);
WHEREAS,
each Subsidiary Pledgor is a Domestic Subsidiary;
WHEREAS,
the proceeds of the Loans will be used in part to enable the Borrower to make
valuable transfers to the Subsidiary Pledgors in connection with the operation
of their respective businesses;
WHEREAS,
each Pledgor acknowledges that it will derive substantial direct and indirect
benefit from the making of the Loans;
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
Loans
to the Borrower under the Credit Agreement that the Borrower and the Subsidiary
Pledgors shall have executed and delivered this Pledge Agreement to the
Collateral Agent for the ratable benefit of the Secured Parties;
and
WHEREAS,
(a) the Pledgors are the legal and beneficial owners of the Equity Interests,
described in Schedule 1 hereto and issued by the entities named therein (the
pledged Eq-
uity
Interests are, together with any Equity Interests of the issuer of such Equity
Interests or any other Subsidiary directly held by any Pledgor in the future,
in
each case, except to the extent excluded from the Collateral for the applicable
Obligations pursuant to the last paragraph of Section 2 below (the “
After-acquired
Shares
”),
referred to collectively herein as the “
Pledged
Shares
”)
and
(b) each of the Pledgors is the legal and beneficial owner of the Indebtedness
described in Schedule 1 hereto (together with any other Indebtedness owed
to any
Pledgor hereafter and required to be pledged pursuant to Section 9.12(a)
of the
Credit Agreement, the “
Pledged
Debt
”);
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent, the Collateral Agent and the Lenders to enter into the Credit Agreement
and to induce the respective Lenders to make the Loans under the Credit
Agreement and to induce one or more Hedge Banks to enter into Secured Hedge
Agreements with the Borrower and/or its Subsidiaries, the Pledgors hereby agree
with the Collateral Agent, for the benefit of the Secured Parties, as
follows:
1.
Defined
Terms
.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b)
“
Proceeds
”
and
any
other term used herein or in the Credit Agreement without definition that is
defined in the UCC has the meaning given to it in the UCC.
(c)
“
Collateral
”
shall
have the meaning provided in
Section
2
.
(d)
As
used
herein, the term “
Equity
Interests
”
shall
mean, collectively, Stock and Stock Equivalents.
(e)
As
used
herein, the term “
UCC
”
shall
mean the Uniform Commercial Code as from time to time in effect in the State
of
New York;
provided
,
however
,
that,
in the event that, by reason of mandatory provisions of law, any of the
attachment, perfection or priority of the Collateral Agent’s and the Secured
Parties’ security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York,
the term “
UCC
”
shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such
provisions.
(f)
References
to “Lenders” in this Pledge Agreement shall be deemed to include Hedge Banks
that may from time to time enter into Secured Hedge Agreements with the Borrower
and/or its Subsidiaries.
(g)
The
words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Pledge Agreement shall refer to this Pledge Agreement as a whole and not to
any
particular provision of this Pledge Agreement, and Section references are to
Sections of this Pledge Agreement unless otherwise specified. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”.
(h)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
2.
Grant
of Security
.
Each
Pledgor hereby transfers, assigns and pledges to the Collateral Agent, for
the
ratable benefit of the Secured Parties, and grants to the Collateral Agent,
for
the benefit of the Secured Parties, a lien on and a security interest in (the
“
Security
Interest
”)
all of
such Pledgor’s right, title and interest in, to and under the following, whether
now owned or existing or at any time hereafter acquired or existing
(collectively, the “
Collateral
”):
(a)
the
Pledged Shares held by such Pledgor and the certificates representing such
Pledged Shares and any interest of such Pledgor in the entries on the books
of
the issuer of the Pledged Shares or any financial intermediary pertaining to
the
Pledged Shares and all dividends, cash, warrants, rights, instruments and other
property or Proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Shares.
(b)
the
Pledged Debt and the instruments evidencing the Pledged Debt owed to such
Pledgor, and all interest, cash, instruments and other property or Proceeds
from
time to time received, receivable or otherwise distributed in respect of or
in
exchange for any or all of such Pledged Debt; and
(c)
to
the
extent not covered by clauses (a) and (b) above, respectively, all Proceeds
of
any or all of the foregoing Collateral.
Notwithstanding
the foregoing, the Collateral for the Obligations shall not include any Excluded
Stock and Stock Equivalents.
3.
Security
for Obligations
.
This
Pledge Agreement secures the payment of all the Obligations of each Credit
Party. Without limiting the generality of the foregoing, this Pledge Agreement
secures the payment of all amounts that constitute part of the Obligations
and
would be owed by any Credit Party to the Secured Parties under the Credit
Documents but for the fact that they are unenforceable or not allowable due
to
the existence of a bankruptcy, reorganization or similar proceeding involving
any Credit Party.
4.
Delivery
of the Collateral
.
All
certificates or instruments, if any, representing or evidencing the Collateral
shall be promptly delivered to and held by or on behalf of the Collateral Agent
pursuant hereto to the extent required by the Credit Agreement and shall be
in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to the Collateral Agent. The Collateral Agent shall
have
the right, at any time after the occurrence and during the continuance of an
Event of Default and with notice to the relevant Pledgor, to transfer to or
to
register in the name of the Collateral Agent or any of its nominees any or
all
of the Pledged Shares. Each delivery of Collateral (including any After-acquired
Shares) shall be accompanied by a notice to the Collateral Agent describing
the
securities theretofore and then being pledged hereunder.
5.
Representations
and Warranties
.
Each
Pledgor represents and warrants as follows:
(a)
Schedule
1 hereto (i) correctly represents as of the Closing Date (A) the issuer, the
certificate number, the Pledgor and the record and beneficial owner, the number
and class and the percentage of the issued and outstanding Equity Interests
of
such class of all Pledged Shares and (B) the issuer, the initial principal
amount, the Pledgor and holder, date of issuance and maturity date of all
Pledged Debt and (ii) together with the comparable schedule to each supplement
hereto, includes all Equity Interests, debt securities and promissory notes
required to be pledged hereunder. Except as set forth on Schedule 1, the Pledged
Shares represent all (or 65% in the case of pledges of Foreign Subsidiaries)
of
the issued and outstanding Equity Interests of each class of Equity Interests
in
the issuer on the Closing Date.
(b)
Such
Pledgor is the legal and beneficial owner of the Collateral pledged or assigned
by such Pledgor hereunder free and clear of any Lien, except for Permitted
Liens
and the Lien created by this Pledge Agreement.
(c)
As
of the
Closing Date, the Pledged Shares pledged by such Pledgor hereunder have been
duly authorized and validly issued and, in the case of Pledged Shares issued
by
a corporation, are fully paid and non-assessable.
(d)
The
execution and delivery by such Pledgor of this Pledge Agreement and the pledge
of the Collateral pledged by such Pledgor hereunder pursuant hereto create
a
legal, valid and enforceable security interest in such Collateral and, upon
delivery of such Collateral to the Collateral Agent in the State of New York,
shall constitute a fully perfected Lien on and security interest in the
Collateral, securing the payment of the Obligations, in favor of the Collateral
Agent for the benefit of the Secured Parties, except as enforceability thereof
may be limited by bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and subject to general principles of
equity.
(e)
Such
Pledgor has full power, authority and legal right to pledge all the Collateral
pledged by such Pledgor pursuant to this Pledge Agreement and this Pledge
Agreement, constitutes a legal, valid and binding obligation of each Pledgor,
enforceable in accordance with its terms, except as enforceability thereof
may
be limited by bankruptcy, insolvency or other similar laws affecting creditors’
rights generally and subject to general principles of equity.
6.
Certification
of Limited Liability Company, Limited Partnership Interests and Pledged
Debt
.
(a)
In
the
event that any Equity Interests in any Domestic Subsidiary that is organized
as
a limited liability company or limited partnership and pledged hereunder shall
be represented by a certificate, the applicable Pledgor shall cause the issuer
of such interests to elect to treat such interests as a “security” within the
meaning of Article 8 of the Uniform Commercial Code of its jurisdiction of
organization or formation, as applicable, by including in its
organiza-
tional
documents language substantially similar to the following and, accordingly,
such
interests shall be governed by Article 8 of the Uniform Commercial
Code:
“The
Partnership/Company hereby irrevocably elects that all membership interests
in
the Partnership/Company shall be securities governed by Article 8 of the Uniform
Commercial Code of [jurisdiction of organization or formation, as applicable].
Each certificate evidencing partnership/membership interests in the
Partnership/Company shall bear the following legend: “This certificate evidences
an interest in [name of Partnership/LLC] and shall be a security for purposes
of
Article 8 of the Uniform Commercial Code.” No change to this provision shall be
effective until all outstanding certificates have been surrendered for
cancellation and any new certificates thereafter issued shall not bear the
foregoing legend.”
(b)
In
the
event that any Equity Interests in any Domestic Subsidiary that is organized
as
a limited liability company or limited partnership and pledged hereunder shall
not be represented by a certificate but the interests in such Domestic
Subsidiary are securities for purposes of Section 8-103 of the UCC, the
applicable Pledgor shall cause the subsidiary to issue a certificate for such
Equity Interests and to comply with clause (a) above.
(c)
Each
Pledgor will comply with Section 9.12(b) of the Credit Agreement.
7.
Further
Assurances
.
Each
Pledgor agrees that at any time and from time to time, at the expense of such
Pledgor, it will execute or otherwise authorize the filing of any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Collateral Agent
or
the Administrative Agent may reasonably request, in order (x) to perfect and
protect any pledge, assignment or security interest granted or purported to
be
granted hereby (including the priority thereof) or (y) to enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder with respect
to
any Collateral.
8.
Voting
Rights; Dividends and Distributions; Etc
.
(a)
So
long
as no Event of Default shall have occurred and be continuing:
(i)
Each
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral or any part thereof for any purpose not
prohibited by the terms of this Pledge Agreement or the other Credit
Documents.
(ii)
The
Collateral Agent shall execute and deliver (or cause to be executed and
delivered) to each Pledgor all such proxies and other instruments as such
Pledgor may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and other rights that it is entitled to exercise pursuant
to
paragraph (i) above.
(b)
Subject
to paragraph (c) below, each Pledgor shall be entitled to receive and retain
and
use, free and clear of the Lien created by this Pledge Agreement, any and all
dividends, distributions, principal and interest made or paid in respect of
the
Collateral to the extent
permitted
by the Credit Agreement, as applicable;
provided
,
however
,
that
any and all noncash dividends, interest, principal or other distributions
that
would constitute Pledged Shares or Pledged Debt, whether resulting from a
subdivision, combination or reclassification of the outstanding Equity Interests
of the issuer of any Pledged Shares or received in exchange for Pledged Shares
or Pledged Debt or any part thereof, or in redemption thereof, or as a result
of
any merger, consolidation, acquisition or other exchange of assets to which
such
issuer may be a party or otherwise, shall be, and shall be forthwith delivered
to the Collateral Agent to hold as, Collateral and shall, if received by
such
Pledgor, be received in trust for the benefit of the Collateral Agent, be
segregated from the other property or funds of such Pledgor and be forthwith
delivered to the Collateral Agent as Collateral in the same form as so received
(with any necessary indorsement).
(c)
Upon
written notice to a Pledgor by the Collateral Agent following the occurrence
and
during the continuance of an Event of Default,
(i)
all
rights of such Pledgor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant
to Section 8(a)(i) shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall thereupon have the sole right to
exercise or refrain from exercising such voting and other consensual rights
during the continuance of such Event of Default,
provided
that,
unless otherwise directed by the Required Lenders, the Collateral Agent shall
have the right (but not the obligation) from time to time following the
occurrence and during the continuance of an Event of Default to permit the
Pledgors to exercise such rights. After all Events of Default have been cured
or
waived, each Pledgor will have the right to exercise the voting and consensual
rights that such Pledgor would otherwise be entitled to exercise pursuant to
the
terms of Section 8(a)(i) (and the obligations of the Collateral Agent under
Section 8(a)(ii) shall be reinstated);
(ii)
all
rights of such Pledgor to receive the dividends, distributions and principal
and
interest payments that such Pledgor would otherwise be authorized to receive
and
retain pursuant to Section 8(b) shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall thereupon have the sole
right
to receive and hold as Collateral such dividends, distributions and principal
and interest payments during the continuance of such Event of Default. After
all
Events of Default have been cured or waived, the Collateral Agent shall repay
to
each Pledgor (without interest) all dividends, distributions and principal
and
interest payments that such Pledgor would otherwise be permitted to receive,
retain and use pursuant to the terms of Section 8(b);
(iii)
all
dividends, distributions and principal and interest payments that are received
by such Pledgor contrary to the provisions of Section 8(b) shall be received
in
trust for the benefit of the Collateral Agent shall be segregated from other
property or funds of such Pledgor and shall forthwith be delivered to the
Collateral Agent as Collateral in the same form as so received (with any
necessary indorsements); and
(iv)
in
order
to permit the Collateral Agent to receive all dividends, distributions and
principal and interest payments to which it may be entitled under Section 8(b)
above,
to
exercise the voting and other consensual rights that it may be entitled to
exercise pursuant to Section 8(c)(i) above, and to receive all dividends,
distributions and principal and interest payments that it may be entitled
to
under Sections 8(c)(ii) and (c)(iii) above, such Pledgor shall from time
to time
execute and deliver to the Collateral Agent, appropriate proxies, dividend
payment orders and other instruments as the Collateral Agent may reasonably
request in writing.
9.
Transfers
and Other Liens; Additional Collateral; Etc
.
Each
Pledgor shall:
(a)
not
(i)
except as permitted by the Credit Agreement, sell or otherwise dispose of,
or
grant any option or warrant with respect to, any of the Collateral or (ii)
create or suffer to exist any consensual Lien upon or with respect to any of
the
Collateral, except for the Lien created by this Pledge Agreement
provided
that in
the event such Pledgor sells or otherwise disposes of assets as permitted by
the
Credit Agreement, and such assets are or include any of the Collateral, the
Collateral Agent shall release such Collateral to such Pledgor free and clear
of
the Lien created by this Agreement concurrently with the consummation of such
sale;
(b)
pledge
and, if applicable, cause each Domestic Subsidiary to pledge, to the Collateral
Agent for the ratable benefit of the Secured Parties, immediately upon
acquisition thereof, all the Equity Interests and all evidence of Indebtedness
held or received by such Pledgor or Domestic Subsidiary required to be pledged
hereunder pursuant to Section 9.12 of the Credit Agreement, in each case
pursuant to a supplement to this Pledge Agreement substantially in the form
of
Annex A hereto (it being understood that the execution and delivery of such
a
supplement shall not require the consent of any Pledgor hereunder and that
the
rights and obligations of each Pledgor hereunder shall remain in full force
and
effect notwithstanding the addition of any new Subsidiary Pledgor as a party
to
this Pledge Agreement); and
(c)
defend
its and the Collateral Agent’s title or interest in and to all the Collateral
(and in the Proceeds thereof) against any and all Liens (other than Permitted
Liens and the Lien created by this Agreement), however arising, and any and
all
Persons whomsoever.
10.
Collateral
Agent Appointed Attorney-in-Fact
.
Each
Pledgor hereby appoints, which appointment is irrevocable and coupled with
an
interest, the Collateral Agent as such Pledgor’s attorney-in-fact, with full
authority in the place and stead of such Pledgor and in the name of such Pledgor
or otherwise, to take any action and to execute any instrument, in each case
after the occurrence and during the continuance of an Event of Default and
with
notice to such Pledgor, that the Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Pledge Agreement, including
to
receive, indorse and collect all instruments made payable to such Pledgor
representing any dividend, distribution or principal or interest payment in
respect of the Collateral or any part thereof and to give full discharge for
the
same.
11.
The
Collateral Agent’s Duties
.
The
powers conferred on the Collateral Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise
any
such powers. Except for the safe custody of any Collateral in its possession
and
the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Shares, whether or not the Collateral
Agent or any other Secured Party has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Agent accords its
own
property.
12.
Remedies
.
If any
Event of Default shall have occurred and be continuing:
(a)
The
Collateral Agent may exercise in respect of the Collateral, in addition to
other
rights and remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under the UCC (whether
or
not the UCC applies to the affected Collateral) or any other applicable law
or
in equity and also may with notice to the relevant Grantor, sell the Collateral
or any part thereof in one or more parcels at public or private sale, at any
exchange broker’s board or at any of the Collateral Agent’s offices or
elsewhere, for cash, on credit or for future delivery, at such price or prices
and upon such other terms as are commercially reasonable irrespective of the
impact of any such sales on the market price of the Collateral. The Collateral
Agent shall be authorized at any such sale (if it deems it advisable to do
so)
to restrict the prospective bidders or purchasers of Collateral to Persons
who
will represent and agree that they are purchasing the Collateral for their
own
account for investment and not with a view to the distribution or sale thereof,
and, upon consummation of any such sale, the Collateral Agent shall have the
right to assign, transfer and deliver to the purchaser or purchasers thereof
the
Collateral so sold. Each purchaser at any such sale shall hold the property
sold
absolutely free from any claim or right on the part of any Pledgor, and each
Pledgor hereby waives (to the extent permitted by law) all rights of redemption,
stay and/or appraisal that it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. The
Collateral Agent or any Secured Party shall have the right upon any such public
sale, and, to the extent permitted by law, upon any such private sale, to
purchase all or any part of the Collateral so sold, and the Collateral Agent
or
such Secured Party may pay the purchase price by crediting the amount thereof
against the Obligations. Each Pledgor agrees that, to the extent notice of
sale
shall be required by law, at least ten days’ notice to such Pledgor of the time
and place of any public sale or the time after which any private sale is to
be
made shall constitute reasonable notification. The Collateral Agent shall not
be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Collateral Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale
may, without further notice, be made at the time and place to which it was
so
adjourned. To the extent permitted by law, each Pledgor hereby waives any claim
against the Collateral Agent arising by reason of the fact that the price at
which
any
Collateral may have been sold at such a private sale was less than the price
that might have been obtained at a public sale, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral to more
than
one offeree.
(b)
Subject
to provisions set forth in the Intercreditor Agreement with respect to ABL
Collateral, the Collateral Agent shall apply the Proceeds of any collection
or
sale of the Collateral in the manner specified in Section 11 of the Credit
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall
be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication
thereof.
(c)
The
Collateral Agent may exercise any and all rights and remedies of each Pledgor
in
respect of the Collateral.
(d)
All
payments received by any Pledgor in respect of the Collateral after the
occurrence and during the continuance of an Event of Default shall be received
in trust for the benefit of the Collateral Agent shall be segregated from other
property or funds of such Pledgor and shall be forthwith delivered to the
Collateral Agent as Collateral in the same form as so received (with any
necessary indorsement).
13.
Amendments,
etc. with Respect to the Obligations; Waiver of Rights
.
Each
Pledgor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Pledgor and without notice to or further
assent by any Pledgor, (a) any demand for payment of any of the Obligations
made
by the Collateral Agent or any other Secured Party may be rescinded by such
party and any of the Obligations continued, (b) the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Credit Agreement, the other
Credit Documents and any other documents executed and delivered in connection
therewith, the Secured Hedge Agreements and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the applicable Administrative Agent (or
the
Required Lenders, as the case may be, or, in the case of any Secured Cash
Management Agreement and Secured Hedge Agreement, the Hedge Bank party thereto)
may deem advisable from time to time, and (d) any collateral security, guarantee
or right of offset at any time held by the Collateral Agent or any other Secured
Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Collateral Agent nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Pledge
Agreement or any property subject thereto. When making any demand hereunder
against any Pledgor, the Collateral Agent or any other Secured Party may, but
shall be under no obligation to, make a similar demand on any Borrower or any
Pledgor or any other person, and any failure by the Collateral Agent or any
other Secured Party to make any such demand or to collect any
payments
from any Borrower or any Pledgor or any other person or any release of any
Borrower or any Pledgor or any other person shall not relieve any Pledgor
in
respect of which a demand or collection is not made or any Pledgor not so
released of its several obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter
of
law, of the Collateral Agent or any other Secured Party against any Pledgor.
For
the purposes hereof “demand” shall include the commencement and continuance of
any legal proceedings.
14.
Continuing
Security Interest; Assignments Under the Credit Agreement;
Release
.
(a)
This
Pledge Agreement shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each Pledgor and the
successors and assigns thereof, and shall inure to the benefit of the Collateral
Agent and the other Secured Parties and their respective successors, indorsees,
transferees and assigns until all the Obligations (other than any contingent
indemnity obligations not then due) under the Credit Documents shall have been
satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
and any Secured Hedge Agreement the Credit Parties may be free from any
Obligations.
(b)
A
Subsidiary Pledgor shall automatically be released from its obligations
hereunder and the Collateral of such Subsidiary Pledgor shall be automatically
released upon such Subsidiary Pledgor ceasing to be a Guarantor in accordance
with Section 13.1 of the Credit Agreement.
(c)
The
Collateral shall be automatically released from the Liens of this Agreement
(i)
to the extent provided for in Section 13.1 of the Credit Agreement and (ii)
upon
the effectiveness of any written consent to the release of the security interest
granted in such Collateral pursuant to Section 13.1 of the Credit Agreement.
Any
such release in connection with any sale, transfer or other disposition of
such
Collateral shall result in such Collateral being sold, transferred or disposed
of, as applicable, free and clear of the Liens of this Agreement.
(d)
In
connection with any termination or release pursuant to the foregoing paragraph
(a), (b) or (c), the Collateral Agent shall execute and deliver to any Pledgor
or authorize the filing of, at such Pledgor’s expense, all documents that such
Pledgor shall reasonably request to evidence such termination or release. Any
execution and delivery of documents pursuant to this Section 14 shall be without
recourse to or warranty by the Collateral Agent.
15.
Reinstatement
.
Each
Pledgor further agrees that, if any payment made by any Credit Party or other
Person and applied to the Obligations is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the Proceeds of Collateral
are
required to be returned by any Secured Party to such Credit Party, its estate,
trustee, receiver or any other party, including any Pledgor, under any
bankruptcy law, state, federal or foreign law, common law or equitable cause,
then, to the extent of such payment or repayment, any Lien or other Collateral
securing such liability shall be and remain in full force and effect, as fully
as if such payment had never been made or, if prior thereto the Lien granted
hereby or other Collateral securing such liability hereunder shall
have
been
released or terminated by virtue of such cancellation or surrender), such
Lien
or other Collateral shall be reinstated in full force and effect, and such
prior
cancellation or surrender shall not diminish, release, discharge, impair
or
otherwise affect any Lien or other Collateral securing the obligations of
any
Pledgor in respect of the amount of such payment.
16.
Notices
.
All
notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder
to any Pledgor shall be given to it in care of the Borrower at the Borrower’s
address set forth in Section 13.2 of the Credit Agreement.
17.
Counterparts
.
This
Pledge Agreement may be executed by one or more of the parties to this Pledge
Agreement on any number of separate counterparts (including by facsimile or
other electronic transmission), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
18.
Severability
.
Any
provision of this Pledge Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction. The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of
the invalid, illegal or unenforceable provisions.
19.
Integration
.
This
Pledge Agreement together with the other Credit Documents represents the
agreement of each of the Pledgors with respect to the subject matter hereof
and
there are no promises, undertakings, representations or warranties by the
Collateral Agent or any other Secured Party relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Credit
Documents.
20.
Amendments
in Writing; No Waiver; Cumulative Remedies
.
(a)
None
of
the terms or provisions of this Pledge Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by
the affected Pledgor and the Collateral Agent in accordance with Section 13.1
of
the Credit Agreement.
(b)
Neither
the Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 20(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any other Secured Party,
any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Collateral Agent or any other Secured Party of
any
right or remedy hereunder on any one occasion shall not
be
construed as a bar to any right or remedy that the Collateral Agent or such
other Secured Party would otherwise have on any future
occasion.
(c)
The
rights, remedies, powers and privileges herein provided are cumulative, may
be
exercised singly or concurrently and are not exclusive of any other rights
or
remedies provided by law.
21.
Section
Headings
.
The
Section headings used in this Pledge Agreement are for convenience of reference
only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
22.
Successors
and Assigns
.
This
Pledge Agreement shall be binding upon the successors and assigns of each
Pledgor and shall inure to the benefit of the Collateral Agent and the other
Secured Parties and their respective successors and assigns, except that no
Pledgor may assign, transfer or delegate any of its rights or obligations under
this Pledge Agreement without the prior written consent of the Collateral
Agent.
23.
WAIVER
OF JURY TRIAL
.
EACH
PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS PLEDGE AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
24.
Submission
to Jurisdiction; Waivers
.
Each
party hereto irrevocably and unconditionally:
(a)
submits
for itself and its property in any legal action or proceeding relating to this
Pledge Agreement and the other Credit Documents to which it is a party, or
for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of New York
and
appellate courts from any thereof;
(b)
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address referred
to in Section 16 or at such other address of which the Collateral Agent shall
have been notified pursuant thereto;
(d)
agrees
that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by
law
or shall limit the right of any party hereto (or any Secured Party) to sue
in
any other jurisdiction; and
(e)
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section 24 any
special, exemplary, punitive or consequential damages.
25.
GOVERNING
LAW
.
THIS
PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to he duly
executed and delivered by its duly authorized officer or other representative
as
of the day and year first above written.
DOLLAR
GENERAL
CORPORATION, as
Pledgor
By:
/s/ Wade
Smith
DG
RETAIL, LLC, as
Pledgor
By:
/s/
Wade
Smith
|
Dollar
|
General
Co
rporation
|
Wade Smith
Treasurer
DOLGENCORP,
INC., as
Pledgor
By:
/s/ Wade
Smith
DOLGENCORP
OF NEW
YORK, INC., as
Pledgor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Pledgor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
S
-1
Pledge
Agreement Signature Pages
DG
TRANSPORTATION,
INC., as Pledgor
By:
/s/ Wade
Smith
DG
LOGISTICS, LLC, as
Pledgor
By:
/s/
Wade
Smith
DG
Transportation,
Inc. as Manager
Wade
Smith
Treasurer
DGC
PROPERTIES LLC,
as Pledgor
Dolgencorp, Inc., as sole member
Wade Smith
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as
Pledgor
SUN-DOLLAR,
L.P., as
Pledgor
By:
/s/ Wade Smith
South
Boston
Holdings, Inc. general partner
Wade Smith
Treasurer
Dolgencorp, Inc. l
imited
partner
Wade Smith
Treasurer
S
-2
Pledge
Agreement Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Pledgor
By:
Sun-Dollar,
L.P. (sole member)
By:
/s/ Wade Smith
South Boston Holdings, Inc. -
-
its
general
partner
Wade Smith
Treasurer
DG
PROMOTIONS, INC.,
as Pledgor
By:
/s/ Wade Smith
Name: WadeSmith
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Pledgor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Pledgor
By:
/s/ Wade Smith
Name:
Wade Smith
Title:
Treasurer
S
-3
Pledge Agreement
Signature Pages
DOLLAR
GENERAL
PARTNERS, as Pledgor
By:
/s/ Wade
Smith
Dollar
General Corporation
-
its
authorized
general
partner
Wade Smith
Treasurer
/s/ Wade Smith
By:
Dollar
General Merchandising, Inc.
—
its
general partner
Wade
Smith
Treasurer
DGC
PROPERTIES OF
KENTUCKY LLC,
as
Pledgor
By:
/s/ Wade
Smith
Dollar
General
Partners as sole member
|
By:
|
Dollar
General Corporation
-
its
authorized general partner
|
Wade Smith
Treasurer
S
-4
Pledge
Agreement Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By:
/s/
Jeffrey Nitz
Name: Jeffrey Nitz
Title:
Director
S-5
Pledge
Agreement Signature Pages
SCHEDULE
1
TO
THE
PLEDGE AGREEMENT
Pledged
Shares
Record
Owner
|
Issuer
|
Certificate
No.
|
Number
and
Class
of Shares
|
%
of
Shares
Owned
|
Dolgencorp,
Inc.
|
South
Boston Holdings, Inc.
|
1
|
1,000;
Common Stock
|
100%
|
Dollar
General
Corporation
|
Dollar
General Merchandising, Inc.
|
1
|
1,000;
Common Stock
|
100%
|
Dollar
General
Corporation
|
DG
Promotions, Inc.
|
1
|
100;
Common Stock
|
100%
|
Dolgencorp,
Inc.
|
Dolgencorp
of Texas, Inc.
|
1
|
1,000;
Common Stock
|
100%
|
Dolgencorp,
Inc.
|
Dolgencorp
of New York, Inc.
|
1
|
1,000;
Common Stock
|
100%
|
Dolgencorp,
Inc.
|
DG
Transportation, Inc.
|
1
|
1,000;
Common Stock
|
100%
|
Dollar
General
Corporation
|
Dolgencorp,
Inc.
|
1
|
642;
Common Stock
|
100%
|
Dollar
General
Corporation
|
Dollar
General Investment, Inc.
|
1
|
2,000;
Common Stock
|
100%
|
Dolgencorp,
Inc.
|
DGC
Properties LLC (DE)
|
-
|
1
Membership Interest
|
100%
|
South
Boston Holdings, Inc.; Dolgencorp, Inc.
|
Sun
Dollar L.P. (CA)
|
-
|
South
Boston Holdings, Inc. - 1.00% ownership
Dolgencorp,
Inc. - 99% ownership; 2 partnership Interests
|
100%
|
Dollar
General
Corporation
|
DG
Retail LLC (TN)
|
-
|
1
Memberships Interest
|
100%
|
DG
Transportation Inc.
|
DG
Logistics LLC (TN)
|
-
|
1
Membership Interest
|
100%
|
Sun
Dollar, L.P.
|
South
Boston FF&E (DE)
|
-
|
1
Membership Interest
|
100%
|
Dolgencorp,
Inc.; Dollar General Corporation; Dollar General Merchandising,
Inc.
|
Dollar
General Partners (KY)
|
-
|
Dollar
General Corporation - 1.00% ownership
Dollar
General Merchandising - 99% ownership; 3 Partnership
Interests
|
100%
|
Dollar
General Partners (KY partnership)
|
DGC
Properties of Kentucky, LLC (DE)
|
-
|
1
Membership Interest
|
100%
|
Dollar
General
Corporation
|
Dollar
General Global Sourcing Limited (Hong Kong)
|
1
|
999
of which 650 pledged;
Ordinary
Shares
|
99.9%
of which
65%pledged
|
Pledged
Debt
Payee
|
Issuer
|
Principal
Amount
|
Date
of
Instrument
|
Dolgencorp,
Inc.
|
Dollar
General Partners
|
$45,592,000
|
10/15/2005
|
Dollar
General Investment, Inc.
|
Dolgencorp,
Inc.
|
$95,700,000
|
12/23/2005
|
Dollar
General Investment, Inc.
|
Dolgencorp,
Inc.
|
$284,994,540
|
6/21/2002
|
Dollar
General Investment, Inc.
|
Dolgencorp
of Texas, Inc.
|
$21,719,882
|
6/21/2002
|
Dollar
General Investment, Inc.
|
Dollar
General Partners
|
$10,885,995
|
6/21/2002
|
ANNEX
A
TO
THE
PLEDGE AGREEMENT
SUPPLEMENT
NO. [ ] dated as of
[ ] to
the PLEDGE AGREEMENT dated as of July 6, 2007, among Dollar General Corporation,
a Tennessee corporation (the “
Borrower
”),
each
of the Subsidiaries of the Borrower listed on the signature pages hereto (each
such Subsidiary being a “
Subsidiary
Pledgor
”
and,
collectively, the “
Subsidiary
Pledgors
”;
the
Subsidiary Pledgors and the Borrower are referred to collectively as the
“
Pledgors
”)
and
Citicorp North America, Inc., as collateral agent (in such capacity, the
“
Collateral
Agent
”)
under
the Credit Agreement referred to below.
A.
Reference
is made to that certain Credit Agreement, dated as of July 6, 2007 (as the
same
may be amended, restated, supplemented or otherwise modified, refinanced or
replaced from time to time, the “
Credit
Agreement
”)
among
the Borrower, the lenders or other financial institutions or entities from
time
to time party thereto (the “
Lenders
”),
Citicorp North America, Inc., as Administrative Agent and Collateral Agent
and
the Guarantee dated as of July 6, 2007 (as the same may be amended, restated,
supplemented and or otherwise modified from time to time, the “
Guarantee
”),
among
the Borrower, the Guarantors party thereto and the Collateral
Agent.
B.
Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Pledge Agreement.
C.
The
Pledgors have entered into the Pledge Agreement in order to induce the
Administrative Agent, the Collateral Agent, the Syndication Agent and the
Lenders to enter into the Credit Agreement and to induce the respective Lenders
to make the Loans to the Borrower under the Credit Agreement and to induce
one
or more Hedge Banks to enter into Secured Hedge Agreements with the Borrower
and/or its Subsidiaries.
D.
The
undersigned Guarantors (each an “
Additional
Pledgor
”)
are
(a) the legal and beneficial owners of the Equity Interests described in
Schedule 1 hereto and issued by the entities named therein (such pledged Equity
Interests, together with any Equity Interests of the issuer of such Pledged
Shares or any other Subsidiary held directly by any Additional Pledgor in the
future, in each case, except to the extent excluded from the Collateral for
the
applicable Obligations pursuant to the penultimate paragraph of Section 1 below
(the “
After-acquired
Additional Pledged Shares
”),
referred to collectively herein as the “
Additional
Pledged Shares
”)
and
(b) the legal and beneficial owners of the Indebtedness described under Schedule
1 hereto (together with any other Indebtedness owed to any Additional Pledgor
hereafter and required to be pledged pursuant to Section 9.12(a) of the Credit
Agreement, the “
Additional
Pledged Debt
”).
E.
Section
9.11 of the Credit Agreement and Section 9(b) of the Pledge Agreement provide
that additional Subsidiaries may become Subsidiary Pledgors under the Pledge
Agreement by execution and delivery of an instrument in the form of this
Supplement. Each undersigned Additional Pledgor is executing this Supplement
in
accordance with the requirements of Section 9(b) of the Pledge Agreement to
pledge to the Collateral Agent for the rat-
able
benefit of the Secured Parties the Additional Pledged Shares and the Additional
Pledged Debt and to become a Subsidiary Pledgor under the Pledge Agreement
in
order to induce the Lenders to make additional Loans and as consideration
for
Loans previously made.
Accordingly,
the Collateral Agent and each undersigned Additional Pledgor agree as
follows:
SECTION
1. In accordance with Section 9(b) of the Pledge Agreement, each Additional
Pledgor by its signature hereby transfers, assigns and pledges to the Collateral
Agent, for the ratable benefit of the Secured Parties, and hereby grants to
the
Collateral Agent, for the ratable benefit of the Secured Parties, a security
interest in all of such Additional Pledgor’s right, title and interest in the
following, whether now owned or existing or hereafter acquired or existing
(collectively, the “
Additional
Collateral
”):
(a)
the
Additional Pledged Shares held by such Additional Pledgor and the certificates
representing such Additional Pledged Shares and any interest of such Additional
Pledgor in the entries on the books of the issuer of the Additional Pledged
Shares or any financial intermediary pertaining to the Additional Pledged Shares
and all dividends, cash, warrants, rights, instruments and other property or
Proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Additional Pledged
Shares;
(b)
the
Additional Pledged Debt and the instruments evidencing the Additional Pledged
Debt owed to such Additional Pledgor, and all interest, cash, instruments and
other property or Proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Additional
Pledged Debt; and
(c)
to
the
extent not covered by clauses (a) and (b) above, respectively, all Proceeds
of
any or all of the foregoing Additional Collateral.
Notwithstanding
the foregoing, the Additional Collateral for the Obligations shall not include
any Excluded Stock and Stock Equivalents.
For
purposes of the Pledge Agreement, the Collateral shall be deemed to include
the
Additional Collateral.
SECTION
2. Each Additional Pledgor by its signature below becomes a Pledgor under the
Pledge Agreement with the same force and effect as if originally named therein
as a Pledgor, and each Additional Pledgor hereby agrees to all the terms and
provisions of the Pledge Agreement applicable to it as a Pledgor thereunder.
Each reference to a “Subsidiary Pledgor” or a “Pledgor” in the Pledge Agreement
shall be deemed to include each Additional Pledgor. The Pledge Agreement is
hereby incorporated herein by reference.
SECTION
3. Each Additional Pledgor represents and warrants as follows:
(a)
Schedule
1 hereto correctly represents as of the date hereof (A) the issuer, the
certificate number, the Additional Pledgor and registered owner, the number
and
class
and
the
percentage of the issued and outstanding Equity Interests of such class of
all
Additional Pledged Shares and (B) the issuer, the initial principal amount,
the
Additional Pledgor and holder, date of and maturity date of all Additional
Pledged Debt. Except as set forth on Schedule 1, the Pledged Shares represent
all (or 65% in the case of pledges of Foreign Subsidiaries) of the issued
and
outstanding Equity Interests of each class of Equity Interests of the issuer
on
the date hereof.
(b)
Such
Additional Pledgor is the legal and beneficial owner of the Additional
Collateral pledged or assigned by such Additional Pledgor hereunder free and
clear of any Lien, except for the Lien created by this Supplement to the Pledge
Agreement.
(c)
As
of the
date of this Supplement, the Additional Pledged Shares pledged by such
Additional Pledgor hereunder have been duly authorized and validly issued and,
in the case of Additional Pledged Shares issued by a corporation, are fully
paid
and non-assessable.
(d)
The
execution and delivery by such Additional Pledgor of this Supplement and the
pledge of the Additional Collateral pledged by such Additional Pledgor hereunder
pursuant hereto create a valid and perfected first-priority security interest
in
the Additional Collateral, securing the payment of the Obligations, in favor
of
the Collateral Agent for the ratable benefit of the Secured
Parties.
(e)
Such
Additional Pledgor has full power, authority and legal right to pledge all
the
Additional Collateral pledged by such Additional Pledgor pursuant to this
Supplement, and this Supplement constitutes a legal, valid and binding
obligation of each Additional Pledgor, enforceable in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors’ rights generally and subject to general
principles of equity.
SECTION
4. This Supplement may be executed by one or more of the parties to this
Supplement on any number of separate counterparts (including by facsimile or
other electronic transmission), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of the copies
of this Supplement signed by all the parties shall be lodged with the Collateral
Agent and the Borrower. This Supplement shall become effective as to each
Additional Pledgor when the Collateral Agent shall have received counterparts
of
this Supplement that, when taken together, bear the signatures of such
Additional Pledgor and the Collateral Agent.
SECTION
5. Except as expressly supplemented hereby, the Pledge Agreement shall remain
in
full force and effect.
SECTION
6.
THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
7. Any provision of this Supplement that is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and in the Pledge Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereto
shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
8. All notices, requests and demands pursuant hereto shall be made in accordance
with Section 16 of the Pledge Agreement. All communications and notices
hereunder to each Additional Pledgor shall be given to it in care of the
Borrower at the Borrower’s address set forth in Section 13.2 of the Credit
Agreement.
-4-
EXHIBIT
4.6
Execution
Version
$1,125,000,000
ABL
CREDIT AGREEMENT
Dated
as
of July 6, 2007
among
DOLLAR
GENERAL CORPORATION,
as
the
Parent Borrower,
The
Several Subsidiary Borrowers Party Hereto,
The
Several Lenders
from
Time
to Time Parties Hereto,
THE
CIT
GROUP/BUSINESS CREDIT, INC.,
as
Administrative Agent, Collateral Agent, Swingline Lender
and
Letter of Credit Issuer
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as
Syndication Agent,
and
LEHMAN
COMMERCIAL PAPER INC.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as
Documentation Agents
GOLDMAN
SACHS CREDIT PARTNERS L.P.
CITIGROUP
GLOBAL MARKETS INC.
LEHMAN
BROTHERS INC. and
WACHOVIA
CAPITAL MARKETS, LLC,
as
Joint
Lead Arrangers and Bookrunners
and
CIT
CAPITAL SECURITIES LLC,
as
Lead
Arranger of the Tranche A-1 Loan Facility
TABLE
OF
CONTENTS
|
|
|
|
Page
|
|
|
|
|
|
SECTION
1.
|
|
DEFINITIONS
|
2
|
|
|
|
|
|
|
1.1.
|
|
Defined
Terms
|
2
|
|
1.2.
|
|
Other
Interpretive Provisions
|
59
|
|
1.3.
|
|
Accounting
Terms
|
59
|
|
1.4.
|
|
Rounding
|
60
|
|
1.5.
|
|
References
to Agreements, Laws, Etc.
|
60
|
|
1.6.
|
|
Determination
of Status
|
60
|
|
|
|
|
|
SECTION
2.
|
|
AMOUNT
AND TERMS OF CREDIT
|
61
|
|
|
|
|
|
|
2.1.
|
|
Commitments
|
61
|
|
2.2.
|
|
Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
|
64
|
|
2.3.
|
|
Notice
of Borrowing; Determination of Class of Loans
|
64
|
|
2.4.
|
|
Disbursement
of Funds
|
65
|
|
2.5.
|
|
Repayment
of Loans; Evidence of Debt
|
66
|
|
2.6.
|
|
Conversions
and Continuations
|
67
|
|
2.7.
|
|
Pro
Rata
Borrowings
|
68
|
|
2.8.
|
|
Interest
|
68
|
|
2.9.
|
|
Interest
Periods
|
69
|
|
2.10.
|
|
Increased
Costs, Illegality, Etc.
|
69
|
|
2.11.
|
|
Compensation
|
71
|
|
2.12.
|
|
Change
of Lending Office
|
72
|
|
2.13.
|
|
Notice
of Certain Costs
|
72
|
|
2.14.
|
|
Incremental
Facilities
|
72
|
|
2.15.
|
|
Reserves,
etc
|
74
|
|
|
|
|
|
SECTION
3.
|
|
LETTERS
OF CREDIT
|
74
|
|
|
|
|
|
|
3.1.
|
|
Letters
of Credit
|
74
|
|
3.2.
|
|
Letter
of Credit Requests
|
75
|
|
3.3.
|
|
Letter
of Credit Participations
|
77
|
|
3.4.
|
|
Agreement
to Repay Letter of Credit Drawings
|
79
|
|
3.5.
|
|
Increased
Costs
|
80
|
|
3.6.
|
|
New
or Successor Letter of Credit Issuer
|
81
|
|
3.7.
|
|
Role
of Letter of Credit Issuer
|
82
|
|
3.8.
|
|
Cash
Collateral
|
83
|
|
3.9.
|
|
Applicability
of ISP and UCP
|
83
|
|
3.10.
|
|
Conflict
with Issuer Documents
|
83
|
|
3.11.
|
|
Letters
of Credit Issued for Restricted Subsidiaries
|
83
|
|
|
|
|
|
SECTION
4.
|
|
FEES;
COMMITMENTS
|
84
|
|
|
|
|
|
|
4.1.
|
|
Fees
|
84
|
|
|
|
|
Page
|
|
|
|
|
|
|
4.2.
|
|
Voluntary
Reduction of Revolving Credit Commitments
|
85
|
|
4.3.
|
|
Mandatory
Termination of Commitments
|
86
|
|
|
|
|
|
SECTION
5.
|
|
PAYMENTS
|
86
|
|
|
|
|
|
|
5.1.
|
|
Voluntary
Prepayments
|
86
|
|
5.2.
|
|
Mandatory
Prepayments
|
87
|
|
5.3.
|
|
Method
and Place of Payment
|
89
|
|
5.4.
|
|
Net
Payments
|
89
|
|
5.5.
|
|
Computations
of Interest and Fees
|
92
|
|
5.6.
|
|
Limit
on Rate of Interest
|
93
|
|
|
|
|
|
SECTION
6.
|
|
CONDITIONS
PRECEDENT TO INITIAL BORROWING
|
93
|
|
|
|
|
|
|
6.1.
|
|
Credit
Documents
|
93
|
|
6.2.
|
|
Collateral
|
94
|
|
6.3.
|
|
Legal
Opinions
|
94
|
|
6.4.
|
|
Contemporaneous
Debt Financings and Repayments
|
94
|
|
6.5.
|
|
Equity
Investments
|
94
|
|
6.6.
|
|
Closing
Certificates
|
94
|
|
6.7.
|
|
Authorization
of Proceedings of Each Credit Party
|
95
|
|
6.8.
|
|
Fees
|
95
|
|
6.9.
|
|
Representations
and Warranties
|
95
|
|
6.10.
|
|
Related
Agreements
|
95
|
|
6.11.
|
|
Solvency
Certificate
|
95
|
|
6.12.
|
|
Merger
|
95
|
|
6.13.
|
|
Pro
Forma Balance Sheet
|
95
|
|
6.14.
|
|
Patriot
Act
|
96
|
|
|
|
|
|
SECTION
7.
|
|
CONDITIONS
PRECEDENT TO ALL CREDIT EVENTS
|
96
|
|
|
|
|
|
|
7.1.
|
|
No
Default; Representations and Warranties
|
96
|
|
7.2.
|
|
Notice
of Borrowing
|
96
|
|
7.3.
|
|
Additional
Borrowing Condition
|
96
|
|
|
|
|
|
SECTION
8.
|
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
|
97
|
|
|
|
|
|
|
8.1.
|
|
Corporate
Status
|
98
|
|
8.2.
|
|
Corporate
Power and Authority
|
98
|
|
8.3.
|
|
No
Violation
|
98
|
|
8.4.
|
|
Litigation
|
98
|
|
8.5.
|
|
Margin
Regulations
|
98
|
|
8.6.
|
|
Governmental
Approvals
|
98
|
|
8.7.
|
|
Investment
Company Act
|
99
|
|
8.8.
|
|
True
and Complete Disclosure
|
99
|
|
8.9.
|
|
Financial
Condition; Financial Statements
|
99
|
|
8.10.
|
|
Tax
Matters
|
100
|
|
|
|
|
Page
|
|
|
|
|
|
|
8.11.
|
|
Compliance
with ERISA
|
100
|
|
8.12.
|
|
Subsidiaries
|
101
|
|
8.13.
|
|
Intellectual
Property
|
101
|
|
8.14.
|
|
Environmental
Laws
|
101
|
|
8.15.
|
|
Properties
|
101
|
|
8.16.
|
|
Solvency
|
102
|
|
|
|
|
|
SECTION
9.
|
|
AFFIRMATIVE
COVENANTS
|
102
|
|
|
|
|
|
|
9.1.
|
|
Information
Covenants
|
102
|
|
9.2.
|
|
Books,
Records and Inspections
|
106
|
|
9.3.
|
|
Maintenance
of Insurance
|
107
|
|
9.4.
|
|
Payment
of Taxes
|
107
|
|
9.5.
|
|
Consolidated
Corporate Franchises
|
107
|
|
9.6.
|
|
Compliance
with Statutes, Regulations, Etc.
|
107
|
|
9.7.
|
|
ERISA
|
107
|
|
9.8.
|
|
Maintenance
of Properties
|
108
|
|
9.9.
|
|
Transactions
with Affiliates
|
108
|
|
9.10.
|
|
End
of Fiscal Years; Fiscal Quarters
|
109
|
|
9.11.
|
|
Additional
Borrowers, Guarantors and Grantors
|
109
|
|
9.12.
|
|
[Reserved].
|
110
|
|
9.13.
|
|
Use
of Proceeds.
|
110
|
|
9.14.
|
|
Further
Assurances.
|
110
|
|
9.15.
|
|
Cash
Management Systems.
|
110
|
|
|
|
|
|
SECTION
10.
|
|
NEGATIVE
COVENANTS
|
114
|
|
|
|
|
|
|
10.1.
|
|
Limitation
on Indebtedness
|
114
|
|
10.2.
|
|
Limitation
on Liens
|
119
|
|
10.3.
|
|
Limitation
on Fundamental Changes
|
122
|
|
10.4.
|
|
Limitation
on Sale of Assets
|
124
|
|
10.5.
|
|
Limitation
on Investments
|
126
|
|
10.6.
|
|
Limitation
on Dividends
|
129
|
|
10.7.
|
|
Limitations
on Debt Payments and Amendments
|
132
|
|
10.8.
|
|
Limitations
on Sale Leasebacks
|
133
|
|
10.9.
|
|
Changes
in Business
|
133
|
|
|
|
|
|
SECTION
11.
|
|
EVENTS
OF DEFAULT
|
133
|
|
|
|
|
|
|
11.1.
|
|
Payments
|
133
|
|
11.2.
|
|
Representations,
Etc.
|
133
|
|
11.3.
|
|
Covenants
|
133
|
|
11.4.
|
|
Default
Under Other Agreements
|
134
|
|
11.5.
|
|
Bankruptcy,
Etc.
|
134
|
|
11.6.
|
|
ERISA
|
135
|
|
11.7.
|
|
Guarantee
|
135
|
|
11.8.
|
|
[Reserved]
|
135
|
|
|
|
|
Page
|
|
|
|
|
|
|
11.9.
|
|
Security
Agreement
|
135
|
|
11.10.
|
|
[Reserved]
|
135
|
|
11.11.
|
|
Judgments
|
135
|
|
11.12.
|
|
Change
of Control
|
135
|
|
11.13.
|
|
Subordination
|
135
|
|
|
|
|
|
SECTION
12.
|
|
THE
AGENTS.
|
137
|
|
|
|
|
|
|
12.1.
|
|
Appointment
|
137
|
|
12.2.
|
|
Delegation
of Duties
|
138
|
|
12.3.
|
|
Exculpatory
Provisions
|
138
|
|
12.4.
|
|
Reliance
by Agents
|
139
|
|
12.5.
|
|
Notice
of Default
|
139
|
|
12.6.
|
|
Non-Reliance
on Administrative Agent, Collateral Agent and Other
Lenders
|
139
|
|
12.7.
|
|
Indemnification
|
140
|
|
12.8.
|
|
Agents
in its Individual Capacities
|
141
|
|
12.9.
|
|
Successor
Agents
|
141
|
|
12.10.
|
|
Withholding
Tax
|
142
|
|
12.11.
|
|
Intercreditor
Agreement
|
142
|
|
12.12.
|
|
Security
Documents and Guarantee
|
143
|
|
|
|
|
|
SECTION
13.
|
|
MISCELLANEOUS
|
143
|
|
|
|
|
|
|
13.1.
|
|
Amendments,
Waivers and Releases
|
143
|
|
13.2.
|
|
Notices
|
146
|
|
13.3.
|
|
No
Waiver; Cumulative Remedies
|
147
|
|
13.4.
|
|
Survival
of Representations and Warranties
|
147
|
|
13.5.
|
|
Payment
of Expenses; Indemnification
|
147
|
|
13.6.
|
|
Successors
and Assigns; Participations and Assignments
|
148
|
|
13.7.
|
|
Replacements
of Lenders under Certain Circumstances
|
152
|
|
13.8.
|
|
Adjustments;
Set-off
|
153
|
|
13.9.
|
|
Counterparts
|
154
|
|
13.10.
|
|
Severability
|
154
|
|
13.11.
|
|
Integration
|
154
|
|
13.12.
|
|
GOVERNING
LAW
|
154
|
|
13.13.
|
|
Submission
to Jurisdiction; Waivers
|
154
|
|
13.14.
|
|
Acknowledgments
|
155
|
|
13.15.
|
|
WAIVERS
OF JURY TRIAL
|
156
|
|
13.16.
|
|
Confidentiality
|
156
|
|
13.17.
|
|
Direct
Website Communications
|
157
|
|
13.19.
|
|
USA
PATRIOT Act
|
158
|
|
13.20.
|
|
Judgment
Currency
|
158
|
|
13.21.
|
|
Payments
Set Aside
|
159
|
|
13.22.
|
|
Joint
and Several Liability
|
159
|
|
13.23.
|
|
Contribution
and Indemnification Among the Borrowers
|
160
|
|
13.24.
|
|
Agency
of the Parent Borrower for Each Other Borrower
|
161
|
|
|
|
|
Page
|
|
|
|
|
|
|
13.25.
|
|
Reinstatement
|
161
|
|
13.26.
|
|
Express
Waivers by Borrowers in Respect of Cross Guaranties and Cross
Collateralization
|
161
|
SCHEDULES
|
|
|
|
|
|
Schedule
1.1(a)
|
|
Existing
Letters of Credit
|
Schedule 1.1(c)
|
|
Commitments
and Addresses of Lenders
|
Schedule
1.1(d)(i)
|
|
Excluded
Subsidiaries
|
Schedule
6.3
|
|
Local
Counsels
|
Schedule
8.3
|
|
No
Violations
|
Schedule
8.4
|
|
Litigation
|
Schedule 8.12
|
|
Subsidiaries
|
Schedule
8.15(a)
|
|
Representations
and Warranties
|
Schedule
9.9
|
|
Closing
Date Affiliate Transactions
|
Schedule
9.14(b)
|
|
Further
Assurances
|
Schedule
9.15(a)
|
|
DDAs/Concentration
Accounts
|
Schedule
9.15(c)
|
|
Credit
Card Arrangements
|
Schedule 10.1
|
|
Closing
Date Indebtedness
|
Schedule 10.2
|
|
Closing
Date Liens
|
Schedule 10.4
|
|
Scheduled
Dispositions
|
Schedule 10.5
|
|
Closing
Date Investments
|
Schedule
13.2
|
|
Notice
Addresses
|
EXHIBITS
|
|
|
|
|
|
Exhibit A
|
|
Form
of Borrowing Base Certificate
|
Exhibit
B
|
|
Form
of Guarantee
|
Exhibit
C
|
|
Reserved
|
Exhibit D
|
|
Form
of Perfection Certificate
|
Exhibit
E
|
|
Reserved
|
Exhibit F
|
|
Form
of Security Agreement
|
Exhibit G
|
|
Form
of Letter of Credit Request
|
Exhibit H-1
|
|
Form
of Legal Opinion of Simpson Thacher & Bartlett
LLP
|
Exhibit H-2
|
|
Form
of Legal Opinion of General Counsel
|
Exhibit I
|
|
Form
of Credit Party Closing Certificate
|
Exhibit J
|
|
Form
of Assignment and Acceptance
|
Exhibit K
|
|
Form
of Promissory Note
|
Exhibit L
|
|
Form
of Joinder Agreement
|
ABL
CREDIT AGREEMENT, dated as of July 6, 2007, among DOLLAR GENERAL CORPORATION,
a
Tennessee corporation
(the
“
Parent
Borrower
”),
the Subsidiary Borrowers party hereto, the lending institutions from time
to
time parties hereto (each a “
Lender
” and, collectively, the
“
Lenders
”), THE CIT GROUP/BUSINESS CREDIT, INC.,
as
Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit
Issuer (such terms and each other capitalized term used but not defined in
this
preamble having the meaning provided in
Section 1
), GOLDMAN SACHS
CREDIT PARTNERS L.P., as Syndication Agent, GOLDMAN SACHS CREDIT PARTNERS
L.P.,
CITIGROUP GLOBAL MARKETS INC., LEHMAN BROTHERS INC. and WACHOVIA CAPITAL
MARKETS, LLC, as Joint Lead Arrangers and Bookrunners, LEHMAN COMMERCIAL
PAPER
INC. and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents (each,
in
such capacity, a “
Documentation Agent
”), and CIT CAPITAL
SECURITIES LLC, as Lead Arranger of the Tranche A-1 Loan Facility.
WHEREAS,
pursuant to the Agreement and Plan of Merger (as amended from time to time
in
accordance therewith, the “
Acquisition Agreement
”), dated as of
March 11, 2007, by and among the Parent Borrower, Holdings and Merger Sub,
Merger Sub will merge with and into the Parent Borrower (the
“
Merger
”), with the Parent Borrower surviving the Merger as a
wholly-owned Subsidiary of Holdings;
WHEREAS,
to fund, in part, the Merger, it is intended that the Sponsors and certain
other
investors (including the Management Investors) will contribute an amount
in cash
to Holdings and/or a direct or indirect parent thereof in exchange for Stock
and
Stock Equivalents (which cash will be contributed to the Parent Borrower
in
exchange for common Stock of the Parent Borrower), which together with the
amount of any rollover equity issued to existing shareholders of the Parent
Borrower (such contribution and rollover, collectively, the “
Equity
Investments
”), shall be no less than 25% of the aggregate pro forma
capitalization of the Parent Borrower on the Closing Date (the “
Minimum
Equity Amount
”);
WHEREAS,
to consummate the transactions contemplated by the Acquisition Agreement,
it is
intended that the Parent Borrower will (a) issue under the Senior Notes
Indenture $1,175,000,000 aggregate principal amount of 10.625% senior notes
due
2015 (the “
Senior Notes
”) in sales pursuant to Rule 144A
and Regulation S under the Securities Act of 1933, as amended (the
“
Senior Notes Offering
”), generating aggregate gross proceeds
of up to $1,175,000,000, (b) issue under the Senior Subordinated Notes Indenture
$725,000,000 aggregate principal amount of 11.875%/12.625%% senior subordinated
notes due 2017 (the “
Senior Subordinated Notes
,” and together
with the Senior Notes, the “
Notes
”) in a sale pursuant to
Rule 144A and Regulation S under the Securities Act of 1933, as amended
(the “
Senior Subordinated
Notes Offering
” and
together with the Senior Notes Offering, the “
Notes Offerings
”)
and (c) enter into the Term Loan Agreement to provide for an aggregate
principal amount of $2,300,000,000 of Term Loans;
WHEREAS,
in connection with the foregoing, (a) the Borrowers have requested that the
Lenders extend credit in the form of Revolving Credit Loans, in an aggregate
principal amount of up to $1,125,000,000 of which up to $307,300,000 of
Tranche A Loans and $125,000,000 of Tranche A-1 Loans (subject in each
case to any Letters of Credit Outstandings and to the Applicable Borrowing
Base)
may be borrowed on the Closing Date to finance a
portion
of the Transactions, (b) the Borrowers have requested that the Letter of
Credit
Issuer issue Letters of Credit at any time and from time to time after
the
Closing Date and prior to the L/C Maturity Date and that the letters of
credit
identified on
Schedule 1.1(a)
hereto (the “
Existing Letters of
Credit
”) be deemed Letters of Credit for all purposes under this
Agreement; and (c) the Parent Borrower has requested the Swingline Lender
to
extend credit in the form of Swingline Loans at any time and from time
to time
prior to the Swingline Maturity Date, in an aggregate principal amount
at any
time outstanding not in excess of $50,000,000;
WHEREAS,
up to $432,300,000 of borrowings under this Agreement will be used by the
Borrowers, together with (a) the net proceeds of the Notes Offerings, (b)
the
net proceeds of the Term Loans and (c) the net proceeds of the Equity
Investments to effect the Merger and to pay Transaction
Expenses. Proceeds of Revolving Credit Loans and Swingline Loans will
be used by the Borrowers after the Closing Date for general corporate purposes
(including Permitted Acquisitions). Letters of Credit will be used by
the Borrowers for general corporate purposes; and
WHEREAS,
the Lenders and Letter of Credit Issuer are willing to make available to
the
Borrowers such revolving credit and letter of credit facilities upon the
terms
and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto hereby agree as follows:
SECTION
1.
Definitions
1.1.
Defined Terms
(a)
As used herein, the following terms shall have the meanings specified in
this
Section 1.1
unless the context otherwise requires (it being
understood that defined terms in this Agreement shall include in the singular
number the plural and in the plural the singular):
“
ABR
”
shall mean for any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Effective Rate
plus
1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to
time
by JPMorgan Chase Bank, N.A. as its “prime rate.” The “prime rate” is
a rate set by the JPMorgan Chase Bank, N.A. based upon various factors including
the JPMorgan Chase Bank N.A.’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above, or below such announced
rate. Any change in the ABR due to a change in such rate announced by
the JPMorgan Chase Bank, N.A. or in the Federal Funds Effective Rate shall
take
effect at the opening of business on the day specified in the public
announcement of such change.
“
ABR
Loan
” shall mean each Loan bearing interest based on the ABR and, in
any event, shall include all Swingline Loans and Protective
Advances.
“
Accommodation
Payment
” shall have the meaning provided in
Section
13.23
.
“
Account
Debtor
” shall mean an “account debtor” as defined in Article 9 of the
UCC, and any other Person who may become obligated to a Credit Party under,
with
respect to, or on account of an Account of such Credit Party (including without
limitation any guarantor or performance of an Account).
“
Accounts
”
shall mean any “account” (as that term is defined in the UCC now or hereafter in
effect).
“
Acquired
EBITDA
” shall mean, with respect to any Acquired Entity or Business or
any Converted Restricted Subsidiary (any of the foregoing, a “
Pro Forma
Entity
”) for any period, the amount for such period of Consolidated
EBITDA of such Pro Forma Entity (determined using such definitions as if
references to the Parent Borrower and its Restricted Subsidiaries therein
were
to such Pro Forma Entity and its Restricted Subsidiaries), all as determined
on
a consolidated basis for such Pro Forma Entity in a manner not inconsistent
with
GAAP.
“
Acquired
Entity or Business
” shall have the meaning provided in the definition
of the term “Consolidated EBITDA.”
“
Acquisition
Agreement
” shall have the meaning provided in the preamble to this
Agreement.
“
Adjusted
Total Revolving Credit Commitment
” shall mean at any time the Total
Revolving Credit Commitment less the aggregate Revolving Credit Commitments
of
all Defaulting Lenders.
“
Administrative
Agent
” shall mean The CIT Group/Business Credit, Inc., as the
administrative agent for the Lenders under this Agreement and the other Credit
Documents, or any successor administrative agent pursuant to
Section
12
.
“
Administrative
Agent’s Office
” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on
Schedule 13.2
, or such other address
or account as the Administrative Agent may from time to time notify to the
Borrowers and the Lenders.
“
Administrative
Questionnaire
” shall have the meaning provided in
Section
13.6(b)
.
“
Affiliate
”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such
Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or
otherwise. “Controlling” (“controlling”) and “controlled” shall have
meanings correlative thereto.
“
Agent
Parties
” shall have the meaning provided in
Section 13.17(c)
.
“
Agents
”
shall mean the Administrative Agent, the Collateral Agent, the Syndication
Agent, each Joint Lead Arranger and Bookrunner, the Lead Arranger with respect
to the Tranche A-1 Loan Facility, and the Documentation Agents.
“Aggregate
Revolving Credit Outstandings”
shall have the meaning provided in
Section 5.2(b)
.
“
Agreement
”
shall mean this ABL Credit Agreement, as the same may be amended, supplemented
or otherwise modified from time to time.
“
Allocable
Amount
”
shall have the meaning provided in
Section 13.23
.
“
Applicable
Amount
” shall mean, at any time (the “
Applicable Amount
Reference Time
”), an amount equal to (a) the
sum,
without duplication, of:
(i)
an
amount (which shall not be less
than zero) equal to the greater of (x) 50% of Cumulative Consolidated Net
Income of the Parent Borrower and the Restricted Subsidiaries for the period
from the first day of the first fiscal quarter commencing after the Closing
Date
until the last day of the then most recent fiscal quarter or fiscal year,
as
applicable, for which Section 9.1 Financials have been delivered and (y)
(A) the cumulative amount of Excess Cash Flow of the Parent Borrower and
the
Restricted Subsidiaries for all fiscal years (or, in the case of the fiscal
year
ending on or about January 31, 2008, the portion of the fiscal year) completed
after the Closing Date (commencing with and including the portion of the
fiscal
year ending on or about January 31, 2008 following the Closing Date) and
prior
to the Applicable Amount Reference Time,
minus
(B) the portion of such
Excess Cash Flow that has been (or is required to be) applied after the Closing
Date and prior to the Applicable Amount Reference Time to the prepayment
of Term
Loans in accordance with
Section 5.2(a)(ii)
of the Term Loan
Agreement;
(ii)
[Reserved];
(iii)
[Reserved];
(iv)
to
the extent not (A) already
included in the calculation of Consolidated Net Income of the Parent Borrower
and the Restricted Subsidiaries or (B) already reflected as a return of capital
or deemed reduction in the amount of such Investment, the aggregate JV
Distribution Amount received by the Parent Borrower or any Restricted Subsidiary
during the period from and including the Business Day immediately following
the
Closing Date through and including the Applicable Amount Reference
Time;
(v)
to
the extent not (A) already
included in the calculation of Consolidated Net Income of the Parent Borrower
and the Restricted Subsidiaries, (B) already reflected as a return of capital
or
deemed reduction in the amount of such Investment and (C) required to be
applied to prepay Term Loans in accordance with
Section 5.2(a)
of the
Term Loan Agreement, the aggregate amount of all Net Cash Proceeds received
by
the Parent Borrower or any Restricted Subsidiary in connection with the sale,
transfer or other disposition of its ownership interest in any joint venture
that is not a Subsidiary or
in
any
Unrestricted Subsidiary during the period from and including the Business
Day
immediately following the Closing Date through and including the Applicable
Amount Reference Time; and
(vi)
other
than for purposes of
Section
10.6(c)
, the aggregate amount of Retained Declined Proceeds (as such term is
defined in the Term Loan Agreement) retained by the Parent Borrower during
the
period from and including the Business Day immediately following the Closing
Date through and including the Applicable Amount Reference Time;
minus
(b) the sum, without duplication, of:
(i)
the aggregate amount
of
Investments made pursuant to
Section 10.5(g)(ii)(y)
,
10.5(i)(y)
or
10.5(v)(z)
following the Closing Date and prior to the Applicable
Amount
Reference Time (with regard to Investments made pursuant to
Section
10.5(g)(ii)(y)
, net of any return of capital in respect of such Investment
or deemed reduction in the amount of such Investment including, without
limitation, upon the re-designation of any Unrestricted Subsidiary as a
Restricted Subsidiary or the Disposition of any such Investment);
(ii)
the aggregate amount
of
dividends pursuant to
Section 10.6(c)(z)
following the Closing Date and
prior to the Applicable Amount Reference Time; and
(iii)
the
aggregate amount of prepayments,
repurchases and redemptions of Senior Notes and Senior Subordinated Notes
pursuant to
Section 10.7(a)(i)(3)
following the Closing Date and prior to
the Applicable Amount Reference Time.
“
Applicable
Equity
Amount
” shall mean, at any time (the “
Applicable Equity Amount
Reference Time
”), an amount equal to, without duplication, (a) the
amount of any capital contributions (other than (i) the Equity Investments
and
(ii) any Specified Equity Contribution made in cash to, or any proceeds of
an
equity issuance received by, the Borrower from and including the Business
Day
immediately following the Closing Date through and including the Applicable
Equity Amount Reference Time, including proceeds from the issuance of Stock
or
Stock Equivalents of any direct or indirect parent of the Borrower, but
excluding all proceeds from the issuance of Disqualified Stock
minus
(b) the sum, without duplication, of:
(i) the
aggregate amount of Investments made pursuant to
Section 10.5(g)(ii)(x)
,
10.5(i)(x)
or
10.5(v)(y)
following the Closing Date and prior to
the Applicable Equity Amount Reference Time (with regard to Investments made
pursuant to
Section 10.5(g)(ii)(x),
net of any return of capital in
respect of such Investment or deemed reduction in the amount of such Investment
including, without limitation, upon the re-designation of any Unrestricted
Subsidiary as a Restricted Subsidiary or the Disposition of any such
Investment);
(ii)
the
aggregate amount of dividends
pursuant to
Section 10.6(c)(y)
following the Closing Date and prior to
the Applicable Equity Amount Reference Time; and
(iii)
the
aggregate amount of prepayments,
repurchases and redemptions of Senior Notes and Senior Subordinated Notes
pursuant to
Section 10.7(a)(i)(2)
following the Closing Date and prior to
the Applicable Equity Amount Reference Time.
“
Applicable
Borrowing
Base
” means (a) if the Tranche A-1 Commitments have been terminated at
such time, the Tranche A Borrowing Base and (b) if the Tranche A-1 Commitments
are outstanding at such time, the Tranche A-1 Borrowing Base.
“
Applicable
Margin
” shall mean at any date, (a) with respect to each Tranche A-1
Loan that is (i) a LIBOR Loan, 2.25% and (b) an ABR Loan, 1.25% and (b) with
respect to each Tranche A Loan, the applicable percentage
per annum
set
forth below based upon the Status in effect on such date:
Status
|
Applicable
Margin for:
|
|
LIBOR
Rate Loans
|
ABR
Loans
|
Level I
Status
|
1.75%
|
0.75%
|
Level II
Status
|
1.50%
|
0.50%
|
Level III
Status
|
1.25%
|
0.25%
|
Notwithstanding
the foregoing, Level II Status shall apply during the period from and including
the Closing Date to but excluding the Trigger Date.
“
Approved
Fund
” shall mean any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an
entity that administers or manages a Lender.
“ARIC”
shall mean Ashley River Insurance Company, Inc., a South Carolina corporation,
or any Subsidiary of the Parent Borrower succeeding ARIC after the Closing
Date
as the so-called “captive” insurance company subject to regulation by a
Governmental Authority and providing insurance coverage and related services
to
the Parent Borrower and its other Subsidiaries.
“
Asset
Sale Prepayment Event
” shall mean any Disposition of Collateral by the
Credit Parties and their Restricted Subsidiaries not in the ordinary course
of
business. Notwithstanding the foregoing, the term “Asset Sale
Prepayment Event” shall not include any transaction permitted by
Section
10.4
(other than any Disposition of Collateral permitted by
Section
10.4(b)
or
Section 10.4(n)
, which shall constitute an Asset Sale
Prepayment Event).
“
Assignment
and Acceptance
” shall mean an assignment and acceptance substantially
in the form of
Exhibit J
, or such other form as may be approved by
the Administrative Agent.
“
Authorized
Officer
” shall mean the President, the Chief Financial Officer, the
Treasurer or any other senior officer of the Parent Borrower (or, if expressly
used with reference
to
a
Subsidiary Borrower, of such Subsidiary Borrower) designated as such in
writing
to the Administrative Agent by the applicable Borrower.
“
Auto-Extension
Letter of Credit
” shall have the meaning provided in
Section
3.2(b)
.
“
Available
Commitment
” shall mean, at any time, (a) with respect to the Tranche A
Lenders (i) the aggregate Tranche A Commitments then in effect over (ii)
the
aggregate Revolving Credit Exposure of all Lenders (other than in respect
of
Tranche A-1 Loans) at such time and (b) with respect to the Tranche A-1 Lenders,
(i) the aggregate Tranche A-1 Commitments then in effect over (ii) the aggregate
principal amount of Tranche A-1 Loans outstanding at such time.
“Average
Daily Excess Availability”
shall mean, for any period, the result of
the sum of the Excess Availability as of the end of each day during such
period,
divided by the number of days in such period.
“
Bankruptcy
Code
” shall have the meaning provided in
Section
11.5
.
“
Blocked
Account Agreement
” shall have the meaning provided in
Section
9.15(a)
.
“
Board
”
shall mean the Board of Governors of the Federal Reserve System of the United
States (or any successor).
“
Borrowers
”
shall mean the Parent Borrower and Subsidiary Borrowers, jointly, severally
and
collectively.
“
Borrowing
”
shall mean and include (a) the incurrence of Swingline Loans from the Swingline
Lender on a given date and (b) the incurrence of one Type of Loan on a
given date (or resulting from conversions on a given date) having, in the
case
of LIBOR Loans, the same Interest Period (
provided
that ABR Loans
incurred pursuant to
Section 2.10(b)
shall be considered part of any
related Borrowing of LIBOR Loans) and (c) the incurrence of any Protective
Advance.
“Borrowing
Bases”
shall mean the Tranche A Borrowing Base and the Tranche A-1
Borrowing Base.
“
Borrowing
Base Certificate
” shall mean a certificate, duly executed by a
Financial Officer or controller of the Parent Borrower, appropriately completed
and substantially in the form of
Exhibit A
hereto.
“
Business
Day
” shall mean any day excluding Saturday, Sunday and any other day
on
which banking institutions in New York City are authorized by law or other
governmental actions to close, and, if such day relates to (a) any interest
rate
settings as to a LIBOR Loan, (b) any fundings, disbursements, settlements
and
payments in respect of any such LIBOR Loan, or (c) any other dealings pursuant
to this Agreement in respect of any such LIBOR
Loan,
such day shall be a day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar
market.
“
Capital
Expenditures
” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
in
all events all amounts expended or capitalized under Capital Leases) by the
Parent Borrower and the Restricted Subsidiaries during such period that,
in
conformity with GAAP, are or are required to be included as capital expenditures
on a consolidated statement of cash flows of the Parent Borrower and its
Subsidiaries.
“
Capital
Lease
” shall mean, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is, or is required to be, accounted for as a capital lease on
the
balance sheet of that Person.
“
Capitalized
Lease Obligations
” shall mean, as applied to any Person, all
obligations under Capital Leases of such Person or any of its Subsidiaries,
in
each case taken at the amount thereof accounted for as liabilities in accordance
with GAAP.
“
Cash
Collateralize
” shall have the meaning provided in
Section
3.8(c)
.
“
Cash
Dominion Event
” shall mean either (i) the occurrence and continuance of
any Event of Default under
Section 11.1
or
11.5
, (ii) the Parent
Borrower has failed to maintain Excess Availability of at least 10% of the
Total
Revolving Credit Commitments for five consecutive Business Days, or (iii)
the
occurrence and continuance of any Event of Default under
Section 11.3(a)
(but only to the extent such Event of Default was caused by a breach of
Sections 10.5
,
10.6
,
10.7
and
10.8
and
the Administrative Agent or the Required Lenders have reasonably determined
to
effect a Cash Dominion Event as a result of such breach), and in the case
of
clauses (ii) and (iii)
, the Administrative Agent has notified the Parent
Borrower in writing thereof. For purposes of this Agreement, the
occurrence of a Cash Dominion Event shall be deemed continuing at the
Administrative Agent’s option (x) if the Cash Dominion Event arises under
clause (i) above, so long as such Event of Default is continuing, or (y)
if the
Cash Dominion Event arises as a result of the Parent Borrower’s failure to
achieve and maintain Excess Availability as required hereunder, until Excess
Availability has been equal to or greater than 10% of the Total Revolving
Credit
Commitments for thirty (30) consecutive days, in which case a Cash Dominion
Event shall no longer be deemed to be continuing for purposes of this Agreement;
provided
that a Cash Dominion Event may not be cured as contemplated by
this sentence more than two times in any four fiscal quarter
period. At any time that a Cash Dominion Event shall be deemed to be
cured or otherwise cease to exist and no other Cash Dominion Event is then
continuing, the Collateral Agent shall take such actions, including delivering
such notices and directions to depositary institutions at which Concentration
Accounts or Disbursement Accounts are established, to terminate the cash
sweeps
and other transfers existing pursuant to
Section 9.15
as a result of
notices or directions given by the Collateral Agent during the existence
of such
Cash Dominion Event.
“Cash
Management Agreement”
shall mean any agreement or arrangement to
provide cash management services, including treasury, depository, overdraft,
credit or debit card, purchase card, electronic funds transfer and other
cash
management arrangements.
“Cash
Management Bank”
shall mean any Person that, either (x) at the time it
enters into a Cash Management Agreement or (y) on the Closing Date, is a
Lender
or an Affiliate of a Lender, in its capacity as a party to such Cash Management
Agreement.
“
Cash
Management Systems
” shall have the meaning provided in
Section
9.15(a)
.
“
Casualty
Event
” shall mean, with respect to any Collateral, any loss of or
damage to, or any condemnation or other taking by a Governmental Authority
of,
such property for which the Parent Borrower or any of its Restricted
Subsidiaries receives insurance proceeds, or proceeds of a condemnation award
or
other compensation.
“
Change
in Law
” shall mean (a) the adoption of any law, treaty, order,
policy, rule or regulation after the date of this Agreement, (b) any change
in any law, treaty, order, policy, rule or regulation or in the interpretation
or application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender with any guideline, request, directive
or order issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
of
law).
“
Change
of Control
” shall mean and be deemed to have occurred if (a) at any
time prior to a Qualifying IPO, the Permitted Holders shall at any time not
own,
in the aggregate, directly or indirectly, beneficially and of record, at
least
35% of the voting power of the outstanding Voting Stock of the Parent Borrower;
or (b) at any time after a Qualifying IPO, any person, entity or “group” (within
the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as
amended), other than the Permitted Holders, shall at any time have acquired
direct or indirect beneficial ownership of a percentage of the voting power
of
the outstanding Voting Stock of the Parent Borrower that exceeds 35% thereof,
unless, in the case of either
clause (a)
or
(b)
above, the
Permitted Holders have, at such time, the right or the ability by voting
power,
contract or otherwise to elect or designate for election at least a majority
of
the board of directors of the Parent Borrower; or (c) Continuing Directors
shall
not constitute at least a majority of the board of directors of the Parent
Borrower; or (d) at any time, a Change of Control (as defined in the Senior
Notes Indenture or the Senior Subordinated Notes Indenture) shall have
occurred.
“
CIT
”
means The CIT Group/Business Credit, Inc.
“
Class
”,
when used in reference to any Loan or Borrowing, shall refer to whether such
Loan, or the Loans comprising such Borrowing, are Tranche A Loans, Tranche
A-1
Loans, New Revolving Loans or Swingline Loans and, when used in reference
to any
Commitment, refers to whether such Commitment is a Tranche A Commitment,
Tranche
A-1 Commitment or a New Revolving Credit Commitment.
“
Closing
Date
” shall mean the date of the initial Borrowing
hereunder.
“
Code
”
shall mean the Internal Revenue Code of 1986, as amended from time to time,
and
the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement, and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
“
Collateral
”
shall mean all property pledged or purported to be pledged pursuant to the
Security Documents.
“
Collateral
Access Agreement
” shall mean landlord waiver, bailee letter or other
access agreement reasonably acceptable to the Administrative Agent.
“
Collateral
Agent
” shall mean The CIT Group/Business Credit, Inc., as collateral
agent under the Security Documents, or any successor collateral agent pursuant
to
Section 12
.
“
Collection
Account
” shall mean the account of the Administrative Agent designated
by the Administrative Agent as such in writing. Any funds on deposit
in the Collection Account shall at all times constitute Collateral.
“Commercial
Letter of Credit”
shall mean any Letter of Credit issued for the
purpose of providing the primary payment mechanism in connection with the
purchase of any materials, goods or services by any Borrower or a Restricted
Subsidiary.
“
Commitment
Fee
” shall have the meaning provided in
Section
4.1(a)
.
“Commitment
Fee Rate”
shall mean, with respect to the Available Commitment
applicable to (a) the Tranche A-1 Lenders, on any day, 0.375%
per annum
and (b) the Tranche A Lenders, on any date, the rate
per annum
set
forth below opposite the Available Commitment applicable to Tranche A Loans
in
effect on such day:
Status
|
Commitment
Fee Rate
|
Available
Commitment with respect to Tranche A Loans> 50% of the
Tranche A Commitments on such day
|
0.375%
|
|
|
Available
Commitment with respect to Tranche A Loans ≤ 50% of the
Tranche A Commitments on such day
|
0.250%
|
Notwithstanding
the foregoing, with respect to Tranche A Commitments, the term “Commitment Fee
Rate” shall mean 0.375% during the period from and including the Closing Date to
but excluding the Trigger Date.
“
Commitments
”
shall mean, with respect to each Lender (to the extent applicable), such
Lender’s Revolving Credit Commitment, New Revolving Credit Commitment and
commitment to acquire participations in Protective Advances.
“
Communications
”
shall have the meaning provided in
Section 13.17(a)
.
“
Concentration
Account
” shall have the meaning provided in
Section
9.15(a)
.
“
Confidential
Information
” shall have the meaning provided in
Section
13.16
.
“
Confidential
Information Memorandum
” shall mean the Confidential Information
Memorandum of the Parent Borrower dated June 2007.
“
Consolidated
EBITDA
” shall mean, for any period, Consolidated Net Income for such
period,
plus
:
(a) without
duplication and to the extent already deducted (and not added back) in arriving
at such Consolidated Net Income, the sum of the following amounts for the
Parent
Borrower and the Restricted Subsidiaries for such period:
(i)
total
interest expense and to the
extent not reflected in such total interest expense, any losses on hedging
obligations or other derivative instruments entered into for the purpose
of
hedging interest rate risk, net of interest income and gains on such hedging
obligations, bank fees and costs of surety bonds in connection with financing
activities,
(ii)
provision
for taxes based on income,
profits or capital, including federal, foreign, state, franchise, excise
and
similar taxes and foreign withholding taxes paid or accrued during such period,
including any penalties and interest relating to any tax
examinations,
(iii)
depreciation
and amortization,
including the amortization of deferred financing fees or costs,
(iv)
Non-Cash
Charges other than pursuant to
clauses (b)
and
(d)
of the definition thereof,
(v)
restructuring
charges, business
optimization expenses or reserves (including restructuring costs related
to
acquisitions after the date hereof and to closure and/or consolidation of
facilities, costs and expenses relating to business optimization programs
and
new systems design and implementation costs and project start-up
costs),
(vi)
the
amount of any minority interest
expense consisting of Subsidiary income attributable to minority equity
interests of third parties in any non-wholly-owned Subsidiary deducted (and
not
added back) in such period in arriving at Consolidated Net Income,
(vii) (A)
an amount equal to the impact on cost of goods sold and operating profit
of
incremental mark-downs taken as a result of Project Alpha and (B) any expenses
associated with Project Alpha inventory and real estate initiatives (including
lease contract termination and other store closing costs, advertising, inventory
liquidation fees, incremental store labor and other costs), provided that
this
clause (vii) shall not apply to any quarterly period beginning after February
1,
2008,
(viii) the
amount of management, monitoring, consulting and advisory fees (including
termination fees) and related indemnities and expenses paid in such period
to
the Sponsors,
(ix)
any
costs or expenses incurred pursuant
to any management equity plan or stock option plan or any other management
or
employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such costs or expenses are funded with cash
proceeds contributed to the capital of the Parent Borrower or net cash proceeds
of an issuance of Stock or Stock Equivalents of the Parent Borrower (other
than
Disqualified Stock),
(x)
the
amount of net cost savings
projected by the Parent Borrower in good faith to be realized as a result
of
specified actions taken or to be taken prior to or during such period (which
cost savings shall be subject only to certification by management of the
Parent
Borrower and shall be calculated on a Pro Forma Basis as though such cost
savings had been realized on the first day of such period), net of the amount
of
actual benefits realized during such period from such actions; provided,
that
(A) such cost savings are reasonably identifiable and factually supportable,
(B)
such actions have been taken or are to be taken within 12 months after the
date
of determination to take such action and some portion of the benefit is expected
to be realized within 12 months of taking such action, (C) no cost savings
shall be added pursuant to this
clause (x)
to the extent duplicative of
any expenses or charges relating to such cost savings that are included in
clause (v) above with respect to such period and (D) the aggregate amount
of
cost savings added pursuant to this
clause (x)
shall not exceed
$25,000,000 for any four consecutive quarter period,
(xi)
to
the extent covered by insurance and
actually reimbursed, or, so long as the Parent Borrower has made a determination
that there exists reasonable evidence that such amount will in fact be
reimbursed by the insurer and only to the extent that such amount is (A)
not
denied by the applicable carrier in writing within 180 days and (B) in fact
reimbursed within 365 days of the date of such evidence (with a deduction
for
any amount so added back to the extent not so reimbursed within such 365
days),
expenses with respect to liability or casualty events or business
interruption,
(xii)
[Reserved],
and
(xiii)
cash
receipts (or any netting
arrangements resulting in reduced cash expenditures) not representing
Consolidated EBITDA or Consolidated Net Income in any period to the extent
non-cash gains relating to such income were deducted in the calculation of
Consolidated EBITDA pursuant to
paragraph (b)
below for any previous
period and not added back,
Less
(b) without
duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
(i) non-cash
gains (excluding any non-cash gain to the extent it represents the reversal
of
an accrual or reserve for a potential cash item that reduced Consolidated
Net
Income or Consolidated EBITDA in any prior period),
(ii)
gains
on asset sales (other than asset
sales in the ordinary course of business),
(iii)
any
net after-tax income from the early
extinguishment of Indebtedness or hedging obligations or other derivative
instruments, and
(iv)
cash
expenditures (or any netting
arrangements resulting in increased cash expenditures) not deducted in arriving
at Consolidated EBITDA or Consolidated Net Income in any period to the extent
non-cash losses relating to such income were added in the calculation of
Consolidated EBITDA pursuant to paragraph (a) above for any previous period
and
not deducted,
in
each
case, as determined on a consolidated basis for the Parent Borrower and the
Restricted Subsidiaries in accordance with GAAP;
provided
that
(i)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA currency translation gains and losses related to currency remeasurements
of Indebtedness or intercompany balances (including the net loss or gain
resulting from Hedge Agreements for currency exchange risk),
(ii)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA for any period any adjustments resulting from the application of
Statement of Financial Accounting Standards No. 133,
(iii)
there
shall be included in
determining Consolidated EBITDA for any period, without duplication, (A)
the
Acquired EBITDA of any Person or business, or attributable to any property
or
asset, acquired by the Parent Borrower or any Restricted Subsidiary during
such
period (but not the Acquired EBITDA of any related Person or business or
any
Acquired EBITDA attributable to any assets or property, in each case to the
extent not so acquired) to the extent not subsequently sold, transferred,
abandoned or otherwise disposed by the Parent Borrower or such Restricted
Subsidiary (each such Person, business, property or asset acquired and not
subsequently so disposed of, an “
Acquired Entity or Business
”)
and the Acquired EBITDA of any Unrestricted Subsidiary that is converted
into a
Restricted Subsidiary during such period (each, a “
Converted Restricted
Subsidiary
”), based on the actual Acquired EBITDA of such Acquired
Entity or Business or Converted Restricted Subsidiary for such period (including
the portion thereof occurring prior to such acquisition or conversion) and
(B) an adjustment in respect of each Acquired Entity or Business equal to
the amount of the Pro Forma Adjustment with respect to such Acquired Entity
or
Business for such period (including the portion thereof occurring prior to
such
acquisition) as specified in a Pro Forma Adjustment Certificate and delivered
to
the Lenders and the Administrative Agent, and
(iv)
to
the extent included in
Consolidated Net Income, there shall be excluded in determining Consolidated
EBITDA for any period the Disposed EBITDA of any Person, property, business
or
asset (other than an Unrestricted Subsidiary) sold, transferred, abandoned
or
otherwise disposed of, closed or classified as discontinued operations by
the
Parent Borrower or any Restricted Subsidiary during such period (each such
Person, property, business or asset so sold or disposed of, a “
Sold
Entity or Business
”), and the Disposed EBITDA of any Restricted
Subsidiary that is converted into an Unrestricted Subsidiary during such
period
(each, a “
Converted Unrestricted Subsidiary
”) based on the
actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted
Subsidiary for such period (including the portion thereof occurring prior
to
such sale, transfer or disposition or conversion).
Notwithstanding
anything to the contrary contained herein and subject to adjustment as provided
in
clauses (iii)
and
(iv)
of the immediately preceding proviso
with respect to acquisitions and dispositions occurring following the Closing
Date, Consolidated EBITDA shall be deemed to be $136,100,000, $127,000,000,
$252,500,000 and $142,900,000, respectively, for the fiscal quarters ended
August 4, 2006, November 3, 2006, February 2, 2007 and May 4, 2007.
“
Consolidated
EBITDA to Consolidated Interest Expense Ratio
” shall mean, as of any
date of determination, the ratio of (a) Consolidated EBITDA for the
relevant Test Period to (b) Consolidated Interest Expense for such Test
Period;
provided
that, for purposes of calculating the Consolidated
EBITDA to Consolidated Interest Expense Ratio for the initial three successive
fiscal quarters after the Closing Date (a) Consolidated Interest Expense
shall
be calculated by (i) dividing (x) the aggregate Consolidated Interest Expense
incurred for all fiscal quarters commencing with the fiscal quarter ending
on or
about October 31, 2007 by (y) the number of fiscal quarters to have ended
after
the Closing Date, and multiplying the quotient thereof by 4.
“
Consolidated
Interest Expense
” shall mean, with respect to any period, without
duplication, the sum of:
(1) consolidated
interest expense of the Parent Borrower and its Restricted Subsidiaries for
such
period, to the extent such expense was deducted (and not added back) in
computing Consolidated Net Income (including (a) amortization of original
issue discount resulting from the issuance of Indebtedness at less than par,
(b) all commissions, discounts and other fees and charges owed with respect
to letters of credit or bankers’ acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of obligations in respect of Hedge
Agreements or other derivative instruments pursuant to GAAP), (d) the
interest component of Capitalized Lease Obligations, and (e) net payments,
if any, pursuant to obligations under interest rate Hedge Agreements with
respect to Indebtedness, and excluding (u) accretion or accrual of
discounted liabilities not constituting Indebtedness, (v) any expense
resulting from the discounting of any Indebtedness in connection with the
application of recapitalization accounting or, if applicable, purchase
accounting, (w) all additional interest then owing pursuant to the
Registration Rights Agreement and any comparable “additional interest” with
respect to other securities, (x) amortization of deferred financing fees,
debt issuance costs, commissions, fees and expenses, (y) any expensing of
bridge, commitment and other financing fees and (z) commissions,
discounts,
yield and other fees and charges (including any interest expense) related
to any
Permitted Receivables Financing); plus
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less
(3) interest
income for such period; plus
(4) all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period;
plus
(5) all
cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such
period.
For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be
deemed to accrue at an interest rate reasonably determined by such Person
to be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
“
Consolidated
Net Income
” shall mean, for any period, the net income (loss) of the
Parent Borrower and the Restricted Subsidiaries for such period determined
on a
consolidated basis in accordance with GAAP, excluding, without
duplication,
(a) any
after-tax effect of extraordinary, unusual or non-recurring charges and gains
for such period (less all fees and expenses relating thereto), including
any
unusual or non-recurring operating expenses directly attributable to the
implementation of cost-savings initiatives, severance costs, relocation costs,
integration and facilities opening costs, signing costs, retention or completion
bonuses, transition costs and costs from curtailments or modifications to
pension and post-retirement employee benefit plans for such period,
(b) the
cumulative effect of a change in accounting principles during such period
to the
extent included in Consolidated Net Income,
(c) Transaction
Expenses, to the extent incurred on or prior to May 1, 2008,
(d) any
fees and expenses incurred during such period, or any amortization thereof
for
such period, in connection with any acquisition, investment, recapitalization,
asset disposition, issuance or repayment of debt, issuance of equity securities,
refinancing transaction or amendment or other modification of any debt
instrument (in each case, including any such transaction consummated prior
to
the Closing Date and any such transaction undertaken but not completed) and
any
charges or non-recurring merger costs incurred during such period as a result
of
any such transaction,
(e) any
net after-tax effect of income or loss for such period attributable to the
early
extinguishment of Indebtedness or to hedging obligations or other derivative
instruments,
(f) accruals
and reserves established or adjusted
within twelve months
after the Closing Date that are so required to be established as a result
of the
Transactions in accordance with GAAP or changes as a result of adoption of
or
modification of accounting policies during such period,
(g) Non-Cash
Charges pursuant to
clauses (b)
or
(d)
of the definition thereof
for such period,
(h) the
amount of any net income (or loss) for such period from disposed or discontinued
operations,
(i) the
amount of losses on asset sales (other than asset sales made in the ordinary
course of business), disposals and abandonments, and
(j) solely
for purposes of determining the Applicable Amount, the net income for such
period of any Restricted Subsidiary (other than any Credit Party) to the
extent
that the declaration or payment of dividends or similar distributions by
that
Restricted Subsidiary of its net income is not at the date of determination
wholly permitted without any prior governmental approval (which has not been
obtained) or, directly or indirectly, by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule,
or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived; provided that Consolidated
Net
Income of the Parent Borrower and the Restricted Subsidiaries will be increased
by the amount of dividends or other distributions or other payments actually
paid in cash (or to the extent converted into cash) to the Parent Borrower
or a
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein.
Without
duplication of the foregoing, there shall be excluded from Consolidated Net
Income for any period the purchase accounting effects of adjustments to
inventory, property, equipment and intangible assets and deferred revenue
in
component amounts required or permitted by GAAP and related authoritative
pronouncements (including the effects of such adjustments pushed down to
the
Parent Borrower and the Restricted Subsidiaries), as a result of the
Transactions, any consummated acquisition whether consummated before or after
the Closing Date, or the amortization or write-off of any amounts
thereof.
“
Consolidated
Senior Secured Debt
” shall mean Consolidated Total Debt secured by a
Lien on any assets of the Parent Borrower or any of its Restricted
Subsidiaries.
“
Consolidated
Senior Secured Debt to Consolidated EBITDA Ratio
” shall mean, as of any
date of determination, the ratio of (a) Consolidated Senior Secured Debt as
of such date to (b) Consolidated EBITDA for the Test Period then last
ended.
“
Consolidated
Stores DDA
” means any DDA into which proceeds from two or more stores
maintained by the Credit Parties are deposited.
“
Consolidated
Total Assets
” shall mean, as of any date of determination, the amount
that would, in conformity with GAAP, be set forth opposite the caption “total
assets” (or
any
like
caption) on a consolidated balance sheet of the Parent Borrower and the
Restricted Subsidiaries at such date.
“Consolidated
Total Debt
” shall mean, as of any date of determination, (a) all
Indebtedness of the types described in
clause (a)
(other than Permitted
Intercompany Indebtedness),
clause (d)
(but, in the case of
clause
(d)
, only to the extent of any unreimbursed drawings under any letter of
credit) and
clause (f)
of the definition thereof, in each case actually
owing by the Parent Borrower and the Restricted Subsidiaries on such date
and to
the extent appearing on the balance sheet of the Parent Borrower determined
on a
consolidated basis in accordance with GAAP (provided that the amount of any
Capitalized Lease Obligations or any such Indebtedness issued at a discount
to
its face value shall be determined in accordance with GAAP) minus (b) the
aggregate cash and cash equivalents (in each case, free and clear of all
Liens,
other than nonconsensual Liens permitted by
Section 10.2
and Liens
permitted by
Section 10.2(k)
and
(o)
and
clauses (i)
and
(ii)
of
Section 10.2(p)
) included in
the cash and cash equivalents accounts listed on the consolidated balance
sheet
of the Parent Borrower and the Restricted Subsidiaries as at such
date.
“
Consolidated
Total Debt to Consolidated EBITDA Ratio
”
shall
mean, as of any date of determination, the ratio of (a) Consolidated Total
Debt
as of the last day of the relevant Test Period to (b) Consolidated EBITDA
for
such Test Period.
“
Consolidated
Working Capital
” shall mean, at any date, the excess of (a) the sum of
all amounts (other than cash and Permitted Investments) that would, in
conformity with GAAP, be set forth opposite the caption “total current assets”
(or any like caption) on a consolidated balance sheet of the Parent Borrower
and
the Restricted Subsidiaries at such date excluding the current portion of
current and deferred income taxes over (b) the sum of all amounts that
would, in conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the Parent
Borrower and the Restricted Subsidiaries on such date, including deferred
revenue but excluding, without duplication, (i) the current portion of any
Funded Debt, (ii) all Indebtedness consisting of Loans and Letter of Credit
Exposure, (iii) the current portion of interest and (iv) the current
portion of current and deferred income taxes.
“
Continuing
Director
” shall mean, at any date, an individual (a) who is a
member of the board of directors of the Parent Borrower on the date hereof,
(b) who, as of the date of determination, has been a member of such board
of directors for at least the twelve preceding months, (c) who has been
nominated to be a member of such board of directors, directly or indirectly,
by
a Sponsor or Persons nominated by a Sponsor or (d) who has been nominated
to be
a member of such board of directors by a majority of the other Continuing
Directors then in office.
“
Contract
Consideration
” shall have the meaning provided in the definition of
Excess Cash Flow.
“
Contractual
Requirement
” shall have the meaning provided in
Section 8.3
.
“
Converted
Restricted Subsidiary
” shall have the meaning provided in the
definition of the term “Consolidated EBITDA.”
“
Converted
Unrestricted Subsidiary
” shall have the meaning provided in the
definition of the term “Consolidated EBITDA.”
“
Cost
”
shall mean, with respect to Inventory, the weighted average cost thereof,
as
determined in the same manner and consistent with the most recent Inventory
Appraisal which has been received by the Collateral Agent.
“
Credit
Card Notifications
” shall have the meaning provided in
Section
9.15(c)
.
“
Credit
Documents
” shall mean this Agreement, the Guarantees (if any), the
Security Documents, each Letter of Credit and any promissory notes issued
by a
Borrower hereunder.
“
Credit
Event
” shall mean and include the making (but not the conversion or
continuation) of a Loan and the issuance of a Letter of Credit.
“
Credit
Party
” shall mean each of the Parent Borrower, each of the Subsidiary
Borrowers, and the Guarantors that is a party to a Credit Document.
“
Cumulative
Consolidated Net Income
” shall mean, for any period, Consolidated Net
Income for such period, taken as a single accounting
period. Cumulative Consolidated Net Income may be a positive or
negative amount.
“Customs
Broker Agreement”
means an agreement among a Credit Party, a customs
broker or other carrier, and the Collateral Agent, in form and substance
reasonably satisfactory to the Collateral Agent, in which the customs broker
or
other carrier acknowledges that it has control over and holds the documents
evidencing ownership of the subject Inventory for the benefit of the Collateral
Agent and agrees, upon notice from the Collateral Agent (which notice shall
be
delivered only upon the occurrence and during the continuance of an Event
of
Default), to hold and dispose of the subject Inventory solely as directed
by the
Collateral Agent.
“
DDA
”
means any checking or other demand deposit account maintained by any Credit
Party other than Concentration Accounts, Disbursement Accounts and the
Non-Controlled Accounts.
“
Default
”
shall mean any event, act or condition that with notice or lapse of time,
or
both, would constitute an Event of Default.
“
Defaulting
Lender
” shall mean any Lender with respect to which a Lender Default is
in effect.
“
Deferred
Net Cash Proceeds
” shall have the meaning provided such term in the
definition of “Net Cash Proceeds.”
“
Deferred
Net Cash Proceeds Payment Date
” shall have the meaning provided such
term in the definition of “Net Cash Proceeds.”
“
Designated
Account
” shall have the meaning provided in
Section
9.15(a)
.
“
Designated
Non-Cash Consideration
” shall mean the fair market value of non-cash
consideration received by the Parent Borrower or a Restricted Subsidiary
in
connection with a Disposition pursuant to
Section 10.4(b)
that is
designated as Designated Non-Cash Consideration pursuant to a certificate
of an
Authorized Officer of the Parent Borrower, setting forth the basis of such
valuation (which amount will be reduced by the fair market value of the portion
of the non-cash consideration converted to cash within 180 days following
the
consummation of the applicable Disposition).
“
Disbursement
Account
” shall have the meaning provided in
Section
9.15(a)
.
“
Disposed
EBITDA
” shall mean, with respect to any Sold Entity or Business or any
Converted Unrestricted Subsidiary for any period, the amount for such period
of
Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted
Subsidiary (determined as if references to the Parent Borrower and the
Restricted Subsidiaries in the definition of Consolidated EBITDA were references
to such Sold Entity or Business or Converted Unrestricted Subsidiary and
its
respective Subsidiaries), all as determined on a consolidated basis for such
Sold Entity or Business or Converted Unrestricted Subsidiary, as the case
may
be.
“
Disposition
”
shall have the meaning provided in
Section 10.4(b)
.
“
Disqualified
Stock
” means, with respect to any Person, any Stock or Stock
Equivalents of such Person which, by its terms, or by the terms of any security
into which it is convertible or for which it is putable or exchangeable,
or upon
the happening of any event, matures or is mandatorily redeemable (other than
solely for Stock or Stock Equivalents that is not Disqualified Stock), other
than as a result of a change of control or asset sale, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof (other than as a result of a change of control or asset sale to the
extent the terms of such Stock or Stock Equivalents provide that such Stock
or
Stock Equivalents shall not be required to be repurchased or redeemed until
the
Maturity Date has occurred or such repurchase or redemption is otherwise
permitted by this Agreement (including as a result of a waiver hereunder)),
in
whole or in part, in each case prior to the date that is ninety-one (91)
days
after the Maturity Date hereunder; provided that if such Stock or Stock
Equivalents are issued to any plan for the benefit of employees of the Parent
Borrower or its Subsidiaries or by any such plan to such employees, such
Stock
or Stock Equivalents shall not constitute Disqualified Stock solely because
it
may be required to be repurchased by the Parent Borrower or its Subsidiaries
in
order to satisfy applicable statutory or regulatory obligations; provided,
further, that any Stock or Stock Equivalents held by any future, present
or
former employee, director, manager or consultant, of the Parent Borrower,
any of
its Subsidiaries or any of its direct or indirect parent companies or any
other
entity in which the Parent Borrower or a Restricted Subsidiary has an Investment
and is designated in good faith as an “affiliate” by the Board of Directors of
the Parent Borrower, in each case pursuant to any stockholders’ agreement,
management equity plan or stock incentive
plan
or
any other management or employee benefit plan or agreement shall not constitute
Disqualified Stock solely because it may be required to be repurchased
by the
Parent Borrower or its Subsidiaries.
“
Disregarded
Entity
” shall mean any Domestic Subsidiary that is disregarded for U.S.
federal income tax purposes.
“
Dividends
”
or “
dividends
” shall have the meaning provided in
Section 10.6
.
“
Documentation
Agent
” shall have the meaning assigned to that term as set forth in the
preamble hereto.
“
Dollars
”
and “
$
” shall mean dollars in lawful currency of the United
States of America.
“
Domestic
Subsidiary
” shall mean each Subsidiary of the Parent Borrower that is
organized under the laws of the United States or any state thereof, or the
District of Columbia.
“
Drawing
”
shall have the meaning provided in
Section 3.4(b)
.
“
Eligible
Accounts
” shall mean, at any date of determination thereof, the
aggregate amount of all Accounts at such date due to a Credit Party except
to
the extent that (determined without duplication):
(a) such
Account does not arise from the sale of goods or the performance of services
by
such Credit Party in the ordinary course of its business;
(b) (i)
such Credit Party’s right to receive payment is not absolute or is contingent
upon the fulfillment of any condition whatsoever (other than the preparation
and
delivery of an invoice) or (ii) with respect to such Account, such Credit
Party is not able to bring suit or otherwise enforce its remedies against
the
Account Debtor through judicial process;
(c) any
defense, counterclaim, set-off or dispute exists as to such Account, but
only to
the extent of such defense, counterclaim, set-off or dispute, unless
(i) the Administrative Agent or the Collateral Agent, in its Permitted
Discretion, has established an appropriate Reserve and determines to include
such Account as an Eligible Account or (ii) such account Debtor has entered
into an agreement reasonably acceptable to the Administrative Agent or the
Collateral Agent to waive such rights;
(d) such
Account is not a true and correct statement of bona fide indebtedness incurred
in the amount of the Account for merchandise sold to or services rendered
and
accepted by the applicable Account Debtor;
(e) an
invoice, reasonably acceptable to the Administrative Agent in form and substance
or otherwise in the form otherwise required by any Account Debtor, has not
been
sent to the applicable Account Debtor in respect of such Account within 30
days
after the earlier of (i) the date the goods have been sold or the services
rendered, as
applicable
or (ii) the date as of which such Account is first included in the
Borrowing Base Certificate or otherwise reported to the Administrative
Agent as
Collateral;
(f) such
Account (i) is not owned by such Credit Party or (ii) is subject to
any Lien, other than Liens permitted hereunder pursuant to
Sections
10.2(a)
,
(b)
and
(d)
;
(g) such
Account is the obligation of an Account Debtor that is another Credit Party
or a
director, officer, employee or Affiliate of any Credit Party;
(h) such
Account is the obligation of an Account Debtor that is the United States
government or a political subdivision thereof, or department, agency or
instrumentality thereof unless such Credit Party, if necessary, has complied
with respect to such obligation with the Federal Assignment of Claims Act
of
1940, or any applicable state, county or municipal law restricting assignment
thereof, in each case to the Administrative Agent’s reasonable
satisfaction;
(i) Accounts
with respect to which the Account Debtor is a Person other than a Governmental
Authority unless: (i) the Account Debtor (A) is a natural person
with a billing address in the United States, (B) maintains its head office
in the United States, or (C) is organized under the laws of the United
States or a political subdivision thereof; or (ii) (A) the Account is
supported by a letter of credit satisfactory to the Administrative Agent,
in its
Permitted Discretion (as to form, substance, and issuer or domestic confirming
bank), that has been delivered to the Administrative Agent and is directly
drawable by the Administrative Agent, or (B) the Account is covered by
credit insurance in form, substance, and amount, and by an insurer, satisfactory
to the Administrative Agent, in its Permitted Discretion,
(j) such
Credit Party is liable for goods sold or services rendered by the applicable
Account Debtor to such Credit Party but only to the extent of the potential
offset;
(k) upon
the occurrence of any of the following with respect to such
Account:
(i) the
Account is not paid within (A) 60 days after the due date or (B) 120 days
after
the invoice date;
(ii) the
Account Debtor obligated upon such Account suspends business, makes a general
assignment for the benefit of creditors or fails to pay its debts generally
as
they come due;
(iii) any
Account Debtor obligated upon such Account is a debtor or a debtor in possession
under any bankruptcy law or any other federal, state or foreign (including
any
provincial) receivership, insolvency relief or other law or laws for the
relief
of debtors;
(l) such
Account is the obligation of an Account Debtor from whom 50% or more of the
dollar amount of all Accounts owing by that Account Debtor are ineligible
under
the criteria set forth in this definition;
(m) such
Account is one as to which the Collateral Agent’s Lien thereon, on behalf of
itself and the Lenders, is not a first priority perfected Lien, subject only
to
Permitted Liens in the nature of bailee, warehousemen, landlord or similar
non-consensual Liens having priority by operation of law;
(n) any
of the representations or warranties in the Credit Documents with respect
to
such Account are untrue in any material respect with respect to such Account
(or, with respect to representations or warranties that are qualified by
materiality, any of such representations and warranties are
untrue);
(o) such
Account is evidenced by a judgment, Instrument or Chattel Paper (each such
term
as defined in the UCC) (other than instruments or Chattel Paper that are
held by
any Credit Party or that have been delivered to the Collateral
Agent);
(p) such
Account, together with all other Accounts owing by such Account Debtor and
its
Affiliates as of any date of determination, exceeds 20% of all Eligible Accounts
(but only to the extent of such excess);
(q) such
Account is payable in any currency other than Dollars;
(r) such
Account has been redated, extended, compromised, settled or otherwise modified
or discounted, but only to the extent of such discount or modification, except
discounts or modifications that are granted by a Credit Party in the ordinary
course of business and that are reflected in the calculation of the Borrowing
Bases;
(s) such
Account exceeds the amount such Credit Party is entitled to receive under
any
capitation arrangement, fee schedule, discount formula, cost-based reimbursement
or other adjustment or limitation to such Person’s usual charges (to the extent
of such excess);
(t) such
Account is of an Account Debtor that is located in a state or jurisdiction
requiring the filing of a notice of business activities report or similar
report
in order to permit a Credit Party to seek judicial enforcement in such state
or
jurisdiction of payment of such Account, unless such Credit Party has qualified
to do business in such state or has filed a notice of business activities
report
or equivalent report for the then-current year or if such failure to file
and
inability to seek judicial enforcement is capable of being remedied without
any
material delay or material cost;
(u) such
Accounts were acquired or originated by a Person acquired in a Permitted
Acquisition (until such time as the Administrative Agent has completed a
customary due diligence investigation as to such Accounts and such Person,
which
investigation may, at the reasonable discretion of the Administrative Agent,
include a field examination, and the Administrative Agent is reasonably
satisfied with the results thereof);
(v) such
Credit Party is subject to an event of the type described in
Section 11.5
;
(w) Accounts
arising in a transaction wherein goods are placed on consignment or are sold
pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill
and
hold, or any other terms by reason of which the payment by the Account Debtor
may be conditional (other than, for the avoidance of doubt, a rental or lease
basis), or
(x) Accounts,
the collection of which the Administrative Agent, in its Permitted Discretion,
believes to be doubtful by reason of the Account Debtor's perceived inability
to
pay, upon notice thereof to such Credit Party.
“
Eligible
Credit Card Receivables
” shall mean, as of any date of determination,
Accounts due to a Credit Party from major credit card and debit card processors
(including, but not limited to, VISA, Mastercard, American Express, Diners
Club,
DiscoverCard, Interlink, NYCE, Star/Mac, Tyme, Pulse, Accel, AFF, Shazam,
CU244,
Alaska Option and Maestro) that arise in the ordinary course of business
and
which have been earned by performance and that are not excluded as ineligible
by
virtue of one or more of the criteria set forth below. None of the following
shall be deemed to be Eligible Credit Card Receivables:
(a) Accounts
that have been outstanding for more than five Business Days from the date
of
sale, or for such longer period(s) as may be approved by the Administrative
Agent in its reasonable discretion;
(b) Accounts
with respect to which a Credit Party does not have good, valid and marketable
title, free and clear of any Lien (other than Liens permitted hereunder pursuant
to
Sections 10.2(a)
,
(b)
and
(d)
);
(c) Accounts
as to which the Collateral Agent’s Lien attached thereon on behalf of itself and
the Lenders, is not a first priority perfected Lien, subject only to Permitted
Liens in the nature of bailee, warehouseman, landlord or similar non-consensual
Liens having priority by operation of law;
(d) Accounts
which are disputed, or with respect to which a claim, counterclaim, offset
or
chargeback (other than chargebacks in the ordinary course by the credit card
processors) has been asserted, by the related credit card processor (but
only to
the extent of such dispute, counterclaim, offset or chargeback);
(e) except
as otherwise approved by the Administrative Agent, Accounts as to which the
credit card processor has the right under certain circumstances to require
a
Credit Party to repurchase the Accounts from such credit card or debit card
processor;
(f) except
as otherwise approved by the Administrative Agent (such approval not to be
unreasonably withheld), Accounts arising from any private label credit card
program of a Credit Party; and
(g) Accounts
due from major credit card and debit card processors (other than JCB, Visa,
Mastercard, American Express, Diners Club, DiscoverCard, Interlink, NYCE,
Star/Mac, Tyme, Pulse, Accel, AFF, Shazam, CU244, Alaska Option and Maestro)
which
the
Administrative Agent in its Permitted Discretion determines to be unlikely
to be
collected.
“Eligible
In-Transit Inventory
” means, as of any date of determination thereof,
without duplication of other Eligible Inventory, Inventory:
(a) that
has been shipped from a location not within the United States of America
(excluding its territories and possessions) for receipt by a Credit Party
within
sixty (60) days of the date of shipment;
(b) for
which the purchase order is in the name of a Credit Party and title has passed
to such Credit Party;
(c) for
which the document of title reflects a Credit Party as consignee or, if
requested by the Collateral Agent, names the Collateral Agent as consignee,
and
in each case for Inventory shipped from a location not within the United
States
of America (excluding its territories and possessions), as to which the
Collateral Agent has control over the documents of title which evidence
ownership of the subject Inventory (such as, if requested by the Collateral
Agent, by the delivery of a Customs Broker Agreement);
(d) that
is insured in accordance with the terms of this Agreement; and
(e) that
otherwise would constitute Eligible Inventory.
“
Eligible
Inventory
” shall mean, at any date of determination thereof, the
aggregate amount of all Inventory owned by a Credit Party at such date except
any Inventory (determined without duplication):
(a) which
is not subject to a first priority perfected Lien in favor of the Collateral
Agent, subject only to Permitted Liens in the nature of bailee, warehouseman,
landlord or similar non-consensual Liens have priority by operation of
law;
(b) which
is subject to any Lien other than (i) a Lien in favor of the Collateral Agent
and (ii) a Permitted Lien which does not have priority over the Lien in favor
of
the Collateral Agent (other than any bailee, warehouseman, landlord or similar
non-consensual Liens having priority of operation of law to the extent either
subclause (i) or (ii) of such clauses (g) or (h) is satisfied with respect
to
the relevant Inventory);
(c) which
is, in the Administrative Agent’s Permitted Discretion, obsolete,
unmerchantable, defective or unfit for sale;
(d) except
as otherwise agreed by the Administrative Agent, any of the representations
or
warranties in the Credit Documents with respect to such Inventory are untrue
in
any material respect with respect to such Inventory (or, with respect to
representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue);
(e) which
constitutes packaging and shipping material, manufacturing supplies, display
items, bill-and-hold goods, returned or repossessed goods (other than goods
that
are undamaged and able to be resold in the ordinary course of business),
defective goods, unfinished goods, goods held on consignment, goods to be
returned to a Credit Party’s suppliers or goods which are not of a type held for
sale in the ordinary course of business;
(f) which
(other than Eligible In-Transit Inventory or Inventory which is the subject
of
an Eligible Letter of Credit) is not located in the United States of America
(excluding its territories and possessions);
(g) which
is located in any location (other than a retail store not located in
Pennsylvania, Virginia or Washington) leased by a Credit Party unless (i)
the
lessor has delivered to the Collateral Agent a Collateral Access Agreement
or
(ii) a Reserve for rent, charges, and other amounts due or to become due
with
respect to such facility has been established by the Administrative Agent
or the
Collateral Agent in its Permitted Discretion;
provided
, that any such
Reserve shall not exceed an amount equal to the rent due with respect to
such
facility for the time period used to determine the orderly liquidation value
as
set forth in the most recent Inventory Appraisal;
(h) which
(except with regard to Eligible In-Transit Inventory or Inventory which is
subject to an Eligible Letter of Credit) is located in any third party warehouse
or is in the possession of a bailee and is not evidenced by a Document, unless
(i) such warehouseman or bailee has delivered to the Collateral Agent a
Collateral Access Agreement and such other documentation as the Administrative
Agent may reasonably require or (ii) an appropriate Reserve has been established
by the Administrative Agent or the Collateral Agent in its Permitted Discretion;
provided, that any such Reserve shall not exceed an amount equal to the
reasonable fees and expenses due with respect to such warehouse or bailee
for
the time period used to determine the orderly liquidation value as set forth
in
the most recent Inventory Appraisal;
(i) which
is the subject of a consignment by a Credit Party as consignor unless (i)
a
protective UCC-1 financing statement has been properly filed against the
consignee, and (ii) there is a written agreement acknowledging that such
Inventory is held on consignment, that such Credit Party retains title to
such
Inventory, that no Lien arising by, through or under such consignee has attached
or will attach to such Inventory and requiring consignee to segregate the
consigned Inventory from the consignee’s other personal or movable property and
having other terms consistent with the such Credit Party’s past practices for
consigned Inventory;
(j)
which is perishable as determined in accordance with GAAP;
(k) which
contains or bears any intellectual property rights licensed to a Credit Party
unless the Administrative Agent is satisfied that it may sell or otherwise
dispose of such Inventory without (i) infringing the rights of such licensor
in
any material respect, (ii) violating any material contract with such
licensor or (iii) incurring any
material
liability with respect to payment of royalties other than royalties incurred
pursuant to sale of such Inventory under the current licensing agreement;
or
(l) such
Inventory was acquired or originated by a Person acquired in a Permitted
Acquisition (until such time as the Administrative Agent has completed a
customary due diligence investigation as to such Inventory and such Person,
which investigation may, at the reasonable discretion of the Administrative
Agent, include a field examination, and the Administrative Agent is reasonably
satisfied with the results thereof).
“Eligible
Letter of Credit”
means, as of any date of determination thereof, a
Commercial Letter of Credit issued or arranged by the Administrative Agent
or
any of its Affiliates (or, to the extent Excess Availability is equal to
or
greater than $250,000,000 on such date, any other Letter of Credit Issuer)
which
supports the purchase of Inventory, (i) which Inventory does not constitute
Eligible In-Transit Inventory and for which no documents of title have then
been
issued; (ii) which Inventory otherwise would constitute Eligible Inventory,
(c) which Commercial Letter of Credit has an expiry within sixty (60) days
of
the date of initial issuance of such Commercial Letter of Credit, and (iv)
which
Commercial Letter of Credit provides that it may be drawn only after the
Inventory is completed in accordance with the underlying purchase order or
contract, and after documents of title have been issued for such Inventory
reflecting a Borrower or, if requested by the Collateral Agent, the Collateral
Agent as consignee of such Inventory.
“
Environmental
Claims
” shall mean any and all actions, suits, orders, decrees,
demands, demand letters, claims, liens, notices of noncompliance, violation
or
potential responsibility or investigation (other than internal reports prepared
by the Parent Borrower or any of the Subsidiaries (a) in the ordinary course
of
such Person’s business or (b) as required in connection with a financing
transaction or an acquisition or disposition of real estate) or proceedings
relating in any way to any Environmental Law or any permit issued, or any
approval given, under any such Environmental Law (hereinafter,
“
Claims
”), including, without limitation, (i) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation
or
injunctive relief relating to the presence, release or threatened release
of
Hazardous Materials or arising from alleged injury or threat of injury to
health
or safety (to the extent relating to human exposure to Hazardous Materials),
or
the environment including, without limitation, ambient air, surface water,
groundwater, land surface and subsurface strata and natural resources such
as
wetlands.
“
Environmental
Law
” shall mean any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code and rule of common law now
or
hereafter in effect and in each case as amended, and any binding judicial
or
administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the protection
of
the environment, including, without limitation, ambient air, surface water,
groundwater, land surface and subsurface strata and natural resources such
as
wetlands, or human health or safety (to the extent relating to human exposure
to
Hazardous Materials), or Hazardous Materials.
“
Equity
Investments
” shall have the meaning provided in the preamble to this
Agreement.
“
ERISA
”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time. Section references to ERISA are to ERISA as in effect
at the date of this Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
“
ERISA
Affiliate
” shall mean each person (as defined in Section 3(9) of ERISA)
that together with the Parent Borrower would be deemed to be a “single employer”
within the meaning of Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“
Event
of Default
” shall have the meaning provided in
Section
11
.
“Excess
Amount
” shall have the meaning provided in
Section
3.1(e)
.
“
Excess
Availability
” shall mean, an amount equal to (a) the lesser of (i) the
aggregate Tranche A Commitments then in effect and (ii) the Tranche A Borrowing
Base
minus
(ii) the aggregate Revolving Credit Exposures of all Lenders
(other than in respect of Tranche A-1 Loans) at such time.
“
Excess
Cash Flow
” shall mean, for any period, an amount equal to the excess
of:
(a) the
sum, without duplication, of
(i)
Consolidated
Net Income for such
period,
(ii)
an
amount equal to the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated
Net
Income and cash receipts included in clauses (a) through (f) of the definition
of Consolidated Net Income and excluded in arriving at such Consolidated
Net
Income,
(iii)
decreases
in Consolidated Working
Capital for such period (other than any such decreases arising from acquisitions
by the Parent Borrower and the Restricted Subsidiaries completed during such
period or the application of purchase accounting),
(iv)
an
amount equal to the aggregate net
non-cash loss on Dispositions by the Parent Borrower and the Restricted
Subsidiaries during such period (other than Dispositions in the ordinary
course
of business) to the extent deducted in arriving at such Consolidated Net
Income;
and
(v)
cash
receipts in respect of Hedge
Agreements during such fiscal year to the extent not otherwise included in
such
Consolidated Net Income;
over
(b) the sum, without duplication, of
(i)
an
amount equal to the amount of all
non-cash credits included in arriving at such Consolidated Net Income and
cash
charges included in clauses (a) through (f) of the definition of Consolidated
Net Income and included in arriving at such Consolidated Net
Income,
(ii)
without
duplication of amounts deducted
pursuant to
clause (xi)
below in prior years, the amount of Capital
Expenditures or acquisitions of intellectual property accrued or made in
cash
during such period, except to the extent that such Capital Expenditures or
acquisitions were financed with the proceeds of Indebtedness of the Parent
Borrower or the Restricted Subsidiaries (unless such Indebtedness has been
repaid),
(iii)
the
aggregate amount of all principal
payments of Indebtedness of the Parent Borrower and the Restricted Subsidiaries
(including (A) the principal component of payments in respect of
Capitalized Lease Obligations, (B) the amount of any repayment of Term
Loans pursuant to
Section 2.5
of the Term Loan Agreement and
(C) the amount of a mandatory prepayment of Term Loans pursuant to
Section 5.2(a)
of the Term Loan Agreement to the extent required due to a
Disposition that resulted in an increase to Consolidated Net Income and not
in
excess of the amount of such increase, but excluding (x) all other
prepayments of Term Loans, (y) all prepayments of Revolving Credit Loans
and Swingline Loans (z) all prepayments in respect of any other revolving
credit
facility, except in the case of
clauses (y)
and
(z)
to the extent
there is an equivalent permanent reduction in commitments thereunder), except
to
the extent financed with the proceeds of other Indebtedness of the Parent
Borrower or the Restricted Subsidiaries,
(iv)
an amount equal to the aggregate net non-cash gain on Dispositions by the
Parent
Borrower and the Restricted Subsidiaries during such period (other than
Dispositions in the ordinary course of business) to the extent included in
arriving at such Consolidated Net Income,
(v)
increases
in Consolidated Working
Capital for such period (other than any such increases arising from acquisitions
by the Parent Borrower and the Restricted Subsidiaries completed during such
period or the application of purchase accounting),
(vi)
payments by the Parent Borrower and the Restricted Subsidiaries during such
period in respect of long-term liabilities of the Parent Borrower and the
Restricted Subsidiaries other than Indebtedness, to the extent not already
deducted from Consolidated Net Income,
(vii)
without duplication of amounts deducted pursuant to
clause (xi)
below in
prior fiscal years, the aggregate amount of cash consideration paid by the
Parent Borrower and the Restricted Subsidiaries (on a consolidated basis)
in
connection with Investments (including acquisitions) made during such period
pursuant to
Section 10.5
to the extent that such Investments were
financed with internally generated cash flow of the Parent Borrower and
the
Restricted Subsidiaries,
(viii)
the amount of dividends paid during such period (on a consolidated basis)
by the
Parent Borrower and the Restricted Subsidiaries pursuant to
Section
10.6(a)
,
(b)
or
(d)
, to the extent such dividends were
financed with internally generated cash flow of the Parent Borrower and the
Restricted Subsidiaries,
(ix)
the
aggregate amount of expenditures
actually made by the Parent Borrower and the Restricted Subsidiaries in cash
during such period (including expenditures for the payment of financing fees)
to
the extent that such expenditures are not expensed during such period and
are
not deducted in calculating Consolidated Net Income,
(x)
the
aggregate amount of any premium,
make-whole or penalty payments actually paid in cash by the Parent Borrower
and
the Restricted Subsidiaries during such period that are made in connection
with
any prepayment of Indebtedness to the extent that such payments are not deducted
in calculating Consolidated Net Income,
(xi)
without
duplication of amounts deducted
from Excess Cash Flow in prior periods, the aggregate consideration required
to
be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant
to binding contracts (the “
Contract Consideration
”) entered
into prior to or during such period relating to Permitted Acquisitions, Capital
Expenditures or acquisitions of intellectual property to be consummated or
made
during the period of four consecutive fiscal quarters of the Borrower following
the end of such period,
provided
that to the extent the aggregate amount
of internally generated cash actually utilized to finance such Permitted
Acquisitions, Capital Expenditures or acquisitions of intellectual property
during such period of four consecutive fiscal quarters is less than the Contract
Consideration, the amount of such shortfall shall be added to the calculation
of
Excess Cash Flow at the end of such period of four consecutive fiscal
quarters,
(xii)
the amount of taxes (including penalties and interest) paid in cash or tax
reserves set aside or payable (without duplication) in such period to the
extent
they exceed the amount of tax expense deducted in determining Consolidated
Net
Income for such period, and
(xiii)
cash expenditures in respect of Hedge Agreements during such fiscal year
to the
extent not deducted in arriving at such Consolidated Net
Income.
“Excluded
Subsidiary”
shall mean (a) each Domestic Subsidiary listed on
Schedule 1.1(d)(i)
hereto and each future Domestic Subsidiary, in each
case, for so long as any such Subsidiary does not constitute a Material
Subsidiary, (b) each Domestic Subsidiary that is not a wholly-owned Subsidiary
on any date such Subsidiary would otherwise be required to
become
a
Subsidiary Borrower or a Guarantor pursuant to the requirements of
Section
9.11
(for so long as such Subsidiary remains a non-wholly-owned Restricted
Subsidiary), (c) any Disregarded Entity substantially all the assets of
which
consist of Stock and Stock Equivalents of Foreign Subsidiaries, (d) each
Domestic Subsidiary that is prohibited by any applicable Contractual Requirement
or Requirement of Law from guaranteeing or granting Liens to secure the
Obligations at the time such Subsidiary becomes a Restricted Subsidiary
(and for
so long as such restriction or any replacement or renewal thereof is in
effect),
(e) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary,
(f)
each other Domestic Subsidiary acquired pursuant to a Permitted Acquisition
financed with secured Indebtedness incurred pursuant to
Section 10.1(j)
and permitted by the proviso to
subclause (y)
of
Section
10.1(j)(i)
and each Restricted Subsidiary thereof that guarantees such
Indebtedness to the extent and so long as the financing documentation relating
to such Permitted Acquisition to which such Restricted Subsidiary is a
party
prohibits such Restricted Subsidiary from guaranteeing, or granting a Lien
on
any of its assets to secure, the Obligations, (g) any other Domestic Subsidiary
with respect to which, in the reasonable judgment of the Administrative
Agent
(confirmed in writing by notice to the Parent Borrower), the cost or other
consequences (including any adverse tax consequences) of providing a Guarantee
of the Obligations shall be excessive in view of the benefits to be obtained
by
the Lenders therefrom, (h) each Unrestricted Subsidiary, and (i)
ARIC.
“
Excluded
Taxes
” shall mean, with respect to any Agent or any Lender,
(a) net income taxes and franchise and excise taxes (imposed in lieu of net
income taxes) imposed on such Agent or Lender, (b) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between
such
Agent or Lender and the jurisdiction of the Governmental Authority imposing
such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising from such Agent or Lender having executed,
delivered or performed its obligations or received a payment under, or having
been a party to or having enforced, this Agreement or any other Credit
Document), (c) any U.S. federal withholding tax that is imposed on amounts
payable to any Lender under the law in effect at the time such Lender becomes
a
party to this Agreement (or, in the case of a Participant, on the date such
Participant became a Participant hereunder);
provided
that this
subclause (c)
shall not apply to the extent that (x) the indemnity
payments or additional amounts any Lender (or Participant) would be entitled
to
receive (without regard to this
subclause (c)
) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Lender (or Participant) would have been
entitled to receive in the absence of such assignment, participation or transfer
or (y) any Tax is imposed on a Lender in connection with an interest or
participation in any Loan or other obligation that such Lender was required
to
acquire pursuant to
Section 13.8(a)
or that such Lender acquired pursuant
to
Section 13.7
(it being understood and agreed, for the avoidance of
doubt, that any withholding tax imposed on a Lender as a result of a Change
in
Law occurring after the time such Lender became a party to this Agreement
(or
designates a new lending office) shall not be an Excluded Tax) and (d) any
Tax
to the extent attributable to such Lender’s failure to comply with
Section 5.4(e)
(in the case of any Non-U.S. Lender) or
Section
5.4(j)
(in the case of a U.S. Lender).
“Existing
DC Sale Leaseback”
shall mean any Sale Leaseback consummated by the
Parent Borrower or any of the Restricted Subsidiaries after the Closing Date
to
replace one or more of the Sale Leasebacks existing on the Closing Date for
the
distribution centers in Indianola, Mississippi; Ardmore, Oklahoma; and Fulton,
Missouri.
“
Existing
Letters of Credit
” shall mean the Letters of Credit listed on
Schedule 1.1(a)
.
“
Existing
Notes Reserve
” shall mean, at any date an amount equal to the aggregate
principal amount of the Parent Borrower’s 8 5/8% notes due June 15, 2010
that, as of such date, remain outstanding.
“
Federal
Funds Effective Rate
” shall mean, for any day, the weighted average of
the
per annum
rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on
such
day, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York;
provided
that (a) if such day is not a Business
Day, the Federal Funds Effective Rate for such day shall be such rate on
such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple
of
1/100 of 1%) charged to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
“
Financial
Officer
” shall mean the Chief Financial Officer, the Treasurer,
Assistant Treasurer or any other senior financial officer of the Parent
Borrower.
“
Foreign
Plan
”
shall mean any employee benefit plan,
program, policy, arrangement or agreement maintained or contributed to by
the
Parent Borrower or any of its Subsidiaries with respect to employees employed
outside the United States.
“
Foreign
Subsidiary
” shall mean each Subsidiary of the Parent Borrower that is
not a Domestic Subsidiary.
“Fronting
Fee”
shall have the meaning provided in
Section
4.1(c)
.
“
Fund
”
shall mean any Person (other than a natural person) that is (or will be)
engaged
in making, purchasing, holding or otherwise investing in commercial loans
and
similar extensions of credit in the ordinary course.
“
Funded
Debt
” shall mean all indebtedness of the Parent Borrower and the
Restricted Subsidiaries for borrowed money that matures more than one year
from
the date of its creation or matures within one year from such date that is
renewable or extendable, at the option of the Parent Borrower or any Restricted
Subsidiary, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders
to
extend credit during a period of more than one year from such date, including
all amounts of Funded Debt required to be paid or prepaid within one year
from
the date of its creation and, in the case of any Borrower, Indebtedness in
respect of the Loans.
“
GAAP
”
shall mean generally accepted accounting principles in the United States
of
America, as in effect from time to time;
provided
,
however
, that
if the Parent Borrower notifies the Administrative Agent that the Parent
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the Closing Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies
the Parent Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice
is
given before or after such change in GAAP or in the application thereof,
then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until
such
notice shall have been withdrawn or such provision amended in accordance
herewith.
“
Governmental
Authority
” shall mean any nation, sovereign or government, any state,
province, territory or other political subdivision thereof, and any entity
or
authority exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including a central
bank or stock exchange.
“Granting
Lender”
shall have the meaning provided in
Section
13.6(h)
.
“
Guarantee
”
shall mean (a) the Guarantee made by any Guarantor in favor of the
Administrative Agent for the benefit of the Secured Parties, substantially
in
the form of
Exhibit B
, and (b) any other guarantee of the Obligations
made by a Restricted Subsidiary that is a Domestic Subsidiary in form and
substance reasonably acceptable to the Administrative Agent, in each case
as the
same may be amended, supplemented or otherwise modified from time to
time.
“
Guarantee
Obligations
” shall mean, as to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness of any other
Person (the “
primary obligor
”) in any manner, whether directly
or indirectly, including any obligation of such Person, whether or not
contingent, (a) to purchase any such Indebtedness or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i)
for the
purchase or payment of any such Indebtedness or (ii) to maintain working
capital
or equity capital of the primary obligor or otherwise to maintain the net
worth
or solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof;
provided
,
however
, that the term “Guarantee
Obligations” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business or customary and reasonable
indemnity obligations in effect on the Closing Date or entered into in
connection with any acquisition or disposition of assets permitted under
this
Agreement (other than such obligations with respect to
Indebtedness). The amount of any Guarantee Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the Indebtedness
in respect of which such Guarantee Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by
such
Person in good faith.
“
Guarantors
”
shall mean each Domestic Subsidiary that becomes a party to the Guarantee
after
the Closing Date pursuant to
Section 9.11
or otherwise.
“
Hazardous
Materials
” shall mean (a) any petroleum or petroleum products,
radioactive materials, friable asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing
regulated levels of polychlorinated biphenyls,
and
radon
gas; (b) any chemicals, materials or substances defined as or included
in the
definition of “hazardous substances”, “hazardous waste”, “hazardous materials”,
“extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”,
“toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import,
under any applicable Environmental Law; and (c) any other chemical, material
or
substance, which is prohibited, limited or regulated by any Environmental
Law.
“
Hedge
Agreements
” shall mean interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
cross-currency rate swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements, and other similar agreements entered into by the Parent Borrower
or
any Restricted Subsidiary in the ordinary course of business (and not for
speculative purposes) for the principal purpose of protecting the Parent
Borrower or any of the Restricted Subsidiaries against fluctuations in interest
rates, currency exchange rates or commodity prices.
“
Hedge
Bank
” shall mean any Person (other than the Parent Borrower or any of
its Subsidiaries) that either (x) at the time it enters into a Secured Hedge
Agreement or (y) with respect to any Secured Hedge Agreement that is in effect
on the Closing Date, on the Closing Date, is a Lender or Agent or an Affiliate
of a Lender or Agent, in its capacity as a party to such Secured Hedge
Agreement.
“
Historical
Financial Statements
” shall mean the audited consolidated balance
sheets of the Parent Borrower as of January 28, 2005, February 3, 2006 and
February 2, 2007 and the audited consolidated statements of income,
stockholders’ equity and cash flows of the Parent Borrower for each of the
fiscal years in the three year period ending on February 2, 2007.
“
Holdings
”
shall mean Buck Holdings, L.P., a Delaware limited partnership, and its
successors.
“
Increased
Amount Date
” shall have the meaning provided in
Section
2.14
.
“
Indebtedness
”
of any Person shall mean (a) all indebtedness of such Person for borrowed
money,
(b) all obligations of such Person evidenced by bonds, debentures, notes,
loan
agreements or other similar instruments, (c) the deferred purchase price
of
assets or services that in accordance with GAAP would be included as a liability
on the balance sheet of such Person, (d) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (e) all Indebtedness of any other Person secured
by any
Lien on any property owned by such Person, whether or not such Indebtedness
has
been assumed by such Person, (f) the principal component of all Capitalized
Lease Obligations of such Person, (g) all obligations of such Person under
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements and other similar agreements and (h) without duplication, all
Guarantee Obligations of such Person,
provided
that Indebtedness shall
not include (i) trade and other ordinary course payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or
prepaid revenue and (iii) purchase price holdbacks in respect of a portion
of the purchase price of an asset to satisfy warranty or other unperformed
obligations of the respective seller. The amount of Indebtedness
of
any
Person for purposes of
clause (e)
shall be deemed to be equal to the
lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii)
the fair
market value of the property encumbered thereby as determined by such Person
in
good faith.
“
indemnified
liabilities
” shall have the meaning provided in
Section
13.5
.
“
Indemnified
Taxes
” shall mean all Taxes (including Other Taxes) other than (i)
Excluded Taxes and (ii) any interest, penalties or expenses caused by an
Agent’s
or Lender’s gross negligence or willful misconduct.
“Indentures
”
shall mean the Senior Notes Indenture and the Senior Subordinated Notes
Indenture.
“
Intercreditor
Agreement
” shall mean the Intercreditor Agreement, dated as of the
Closing Date, among the Collateral Agent and the Term Loan Facility Collateral
Agent, as the same may be amended, restated or modified from time to
time.
“
Interest
Period
” shall mean, with respect to any Revolving Credit Loan, the
interest period applicable thereto, as determined pursuant to
Section 2.9
.
“
Inventory
”
has the meaning assigned to such term in the Security Agreement.
“
Inventory
Appraisal
” shall mean (a) on the Closing Date, the appraisal prepared
by Great American Group dated June 2007 and (b) thereafter, the most recent
inventory appraisal conducted by an independent appraisal firm pursuant to
Section 9.2(b)
.
“
Investment
”
shall mean, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of Stock, Stock
Equivalents, bonds, notes, debentures, partnership or other ownership interests
or other securities of any other Person (including any “short sale” or any sale
of any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person) (including
any
partnership or joint venture); (c) the entering into of any guarantee of,
or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division
of
such Person;
provided
that, in the event that any Investment is made by
the Parent Borrower or any Restricted Subsidiary in any Person through
substantially concurrent interim transfers of any amount through one or more
other Restricted Subsidiaries, then such other substantially concurrent interim
transfers shall be disregarded for purposes of
Section 10.5
.
“
Investment
Grade Rating
” shall mean a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent
rating by any other nationally recognized statistical rating agency selected
by
the Parent Borrower.
“
Investment
Grade Securities
” shall mean (a) securities issued or directly and
fully guaranteed or insured by the government of the United States of America
or
any agency or
instrumentality
thereof (other than Permitted Investments), (b) debt securities or debt
instruments with an Investment Grade Rating, but excluding any debt securities
or instruments constituting loans or advances among the Parent Borrower
and its
Subsidiaries and (c) investments in any fund that invests exclusively in
investments of the type described in
clauses (a)
and
(b)
, which
fund may also hold immaterial amounts of cash pending investment and
distribution.
“
Investors
”
shall mean the Sponsors, the Management Investors and each other investor
providing a portion of the Equity Investments on the Closing Date.
“
ISP
”
shall mean, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).
“
Issuer
Documents
” shall mean with respect to any Letter of Credit, the Letter
of Credit Request, and any other document, agreement and instrument entered
into
by the Letter of Credit Issuer and the Parent Borrower (or any Restricted
Subsidiary) or in favor of the Letter of Credit Issuer and relating to such
Letter of Credit.
“
Joinder
Agreement
” shall mean an agreement substantially in the form of
Exhibit L
.
“
Joint
Lead Arrangers and Bookrunners
” shall mean Goldman Sachs Credit
Partners L.P., Citigroup Global Markets Inc., Lehman Brothers Inc. and Wachovia
Capital Markets, LLC.
“
JV
Distribution Amount
” means, at any time, the aggregate amount of cash
distributed to the Parent Borrower or any Restricted Subsidiary by any joint
venture that is not a Subsidiary (regardless of the form of legal entity)
since
the Closing Date and prior to such time (without duplication of any amount
treated as a reduction in the outstanding amount of Investments by the Parent
Borrower or any Restricted Subsidiary pursuant to
clause (i)
or
(v)
of
Section 10.5
) and only to the extent that neither the
Parent Borrower nor any Restricted Subsidiary is under any obligation to
repay
such amount to such joint venture.
“
KKR
”
shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR
Associates, L.P.
“
L/C
Borrowing
” shall mean an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when
made
or refinanced as a Borrowing. All L/C Borrowings shall be denominated
in Dollars.
“
L/C
Maturity Date
” shall mean the date that is five Business Days prior to
the Maturity Date.
“
L/C
Obligations
” shall mean, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Unpaid Drawings, including all L/C
Borrowings. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount
may
still be
drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter
of
Credit shall be deemed to be “outstanding” in the amount so remaining available
to be drawn.
“
L/C
Participant
” shall have the meaning provided in
Section
3.3(a)
.
“
L/C
Participation
” shall have the meaning provided in
Section
3.3(a)
.
“
Lender
”
shall have the meaning provided in the preamble to this Agreement.
“
Lender
Default
” shall mean (a) the failure (which has not been cured) of a
Lender to make available its portion of any Borrowing, to fund its portion
of
any unreimbursed payment under
Section 3.3
or to fund its participation
in a Protective Advance that it is required to make hereunder or (b) a Lender
having notified the Administrative Agent and/or the Parent Borrower that
it does
not intend to comply with the obligations under
Section 2.1(a)
,
2.1(d)
or
3.
3 or (c) a Lender being deemed insolvent or
becoming the subject of a bankruptcy or insolvency proceeding.
“
Letter
of Credit
” shall mean each letter of credit issued pursuant to
Section 3.1
.
“
Letter
of Credit Commitment
” shall mean $350,000,000, as the same may be
reduced from time to time pursuant to
Section 3.1
.
“
Letter
of Credit Exposure
” shall mean, with respect to any Lender, at any
time, the sum of (a) the principal amount of any Unpaid Drawings in respect
of
which such Lender has made (or is required to have made) payments to the
Letter
of Credit Issuer pursuant to
Section 3.4(a)
at such time and (b) such
Lender’s Revolving Credit Commitment Percentage of the Letters of Credit
Outstanding at such time (excluding the portion thereof consisting of Unpaid
Drawings in respect of which the Lenders have made (or are required to have
made) payments to the Letter of Credit Issuer pursuant to
Section
3.4(a)
).
“
Letter
of Credit Fee
” shall have the meaning provided in
Section
4.1(b)
.
“
Letter
of Credit Issuer
” shall mean (a) CIT, any of its Affiliates or any
replacement or successor pursuant to
Section 3.6
, (b) each
issuer of an Existing Letter of Credit and (c) at any time such Person is
a
Lender, SunTrust Bank, Bank of America, N.A., LaSalle Bank, National
Association, U.S. Bank, National Association, Wachovia Bank, National
Association, and KeyBank (it being understood that if any such Person ceases
to
be a Lender hereunder, such Person will remain a Letter of Credit Issuer
with
respect to any Letters of Credit issued by such Person that remained outstanding
as of the date such Person ceased to be a Lender). If the Parent
Borrower requests CIT to issue a Letter of Credit, CIT may, in its discretion,
arrange for such Letter of Credit to be issued by Affiliates of CIT or any
Lender, and in each such case the term “Letter of Credit Issuer” shall include
any such Affiliate or Lender with respect to Letters of Credit issued by
such
Affiliate or Lender. References herein and in the other Credit
Documents to the Letter of Credit Issuer shall be deemed to refer to the
Letter
of Credit Issuer in respect of the applicable Letter of Credit or to all
Letter
of Credit Issuers, as the context requires.
“
Letters
of Credit Outstanding
” shall mean, at any time, the sum of, without
duplication, (a) the aggregate Stated Amount of all outstanding Letters of
Credit and (b) the aggregate principal amount of all Unpaid Drawings in
respect of all Letters of Credit.
“
Letter
of Credit Request
” shall have the meaning provided in
Section
3.2
.
“
Level I
Status
” shall mean, on any date, the circumstance that the Average
Daily Excess Availability for the immediately preceding fiscal quarter is
less
than or equal to $250,000,000 as calculated pursuant to
Section 1.6
.
“
Level II
Status
” shall mean, on any date, the circumstance that Level I
Status does not exist and the Average Daily Excess Availability for the
immediately preceding fiscal quarter is less than or equal to $750,000,000
as of
the end of the immediately preceding fiscal quarter and as calculated pursuant
to
Section 1.6
.
“
Level
III Status
” shall mean the circumstance, on any date, that Level I
Status and Level II Status do not exist.
“
LIBOR
Loan
” shall mean any Revolving Credit Loan or New Revolving Loan
bearing interest at a rate determined by reference to the LIBOR
Rate.
“LIBOR
Rate”
shall mean, for any Interest Period with respect to a LIBOR Loan,
the rate appearing on Reuters Screen LIBOR01 Page (or on any successor page
or
any successor service, or any substitute page or substitute for such service,
providing rate quotations comparable to those currently provided on Reuters
Screen LIBOR01 Page, as determined by the Administrative Agent from time
to time
for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
as
the rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for
any reason, then the “LIBOR Rate” with respect to such LIBOR Loan for such
Interest Period shall be determined by Administrative Agent by reference
to such
other comparable publicly available service for displaying the offered rate
for
dollar deposits in the London interbank market as may be selected by the
Administrative Agent and, in the absence of availability, such other method
to
determine such eurodollar rate as may be selected by the Administrative Agent
in
its Permitted Discretion.
“
Lien
”
shall mean any mortgage, pledge, security interest, hypothecation, assignment,
lien (statutory or other) or similar encumbrance (including any agreement
to
give any of the foregoing, any conditional sale or other title retention
agreement or any lease or license in the nature thereof).
“
Liquidity
Event
” shall mean, on any date, the circumstance that Excess
Availability is less than $75,000,000.
“
Loan
”
shall mean any Revolving Credit Loan, Swingline Loan, New Revolving Loan
or
Protective Advance made by any Lender hereunder.
“
Management
Investors
” shall mean the directors, management officers and employees
of the Parent Borrower and its Subsidiaries on the Closing Date.
“
Mandatory
Borrowing
” shall have the meaning provided in
Section
2.1(c)
.
“
Material
Adverse Effect
” shall mean a circumstance or condition affecting the
business, assets, operations, properties or financial condition of the Parent
Borrower and the Subsidiaries, taken as a whole, that would, individually
or in
the aggregate, materially adversely affect (a) the ability of the Parent
Borrower and the other Credit Parties, taken as a whole, to perform their
payment obligations under this Agreement or any of the other Credit Documents
or
(b) the rights and remedies of the Administrative Agent and the Lenders
under this Agreement or any of the other Credit Documents.
“
Material
Subsidiary
” shall mean, at any date of determination, each Restricted
Subsidiary of the Parent Borrower (a) whose total assets at the last day
of the
Test Period for which Section 9.1 Financials have been delivered were equal
to
or greater than 2.5% of the Consolidated Total Assets of the Parent Borrower
and
the Restricted Subsidiaries at such date or (b) whose revenues during such
Test
Period were equal to or greater than 2.5% of the consolidated revenues of
the
Parent Borrower and the Restricted Subsidiaries for such period, in each
case
determined in accordance with GAAP; provided that if, at any time and from
time
to time after the Closing Date, Restricted Subsidiaries that are not Material
Subsidiaries have, in the aggregate, (x) total assets at the last day of
such
Test Period equal to or greater than 10.0% of the Consolidated Total Assets
of
the Parent Borrower and the Restricted Subsidiaries at such date or (y) revenues
during such Test Period equal to or greater than 10.0% of the consolidated
revenues of the Parent Borrower and the Restricted Subsidiaries for such
period,
in each case determined in accordance with GAAP, then the Parent Borrower
shall,
on the date on which financial statements for such quarter are delivered
pursuant to this Agreement, designate in writing to the Administrative Agent
one
or more of such Restricted Subsidiaries as “Material Subsidiaries.”
“
Maturity
Date
” shall mean July 6, 2013.
“
Maximum
Incremental Facilities Amount
” shall mean, at any date of
determination, the difference of (a) $325,000,000 minus (b) the aggregate
principal amount of incremental commitments obtained under the Term Loan
Facility pursuant to
Section 2.14
of the Term Loan Agreement after the
Closing Date but prior to such date of determination.
“
Merger
”
shall have the meaning provided in the preamble to this Agreement.
“
Merger
Sub
” shall mean Buck Acquisition Corp., a Tennessee
corporation.
“
Minimum
Borrowing Amount
” shall mean (a) with respect to a Borrowing of LIBOR
Loans, $5,000,000 (or, if less, the entire remaining Commitments at the time
of
such Borrowing), (b) with respect to a Borrowing of ABR Loans, $500,000
(or, if less, the entire remaining Commitments at the time of such Borrowing),
and (c) with respect to a Borrowing of Swingline Loans, $500,000 (or, if
less, the entire remaining Commitments at the time of such
Borrowing).
“
Minimum
Equity Amount
” shall have the meaning provided in the preamble to this
Agreement.
“
Monthly
Account Statement
” shall have the meaning provided in
Section
9.15(a)
.
“
Monthly
Borrowing Base Certificate
” shall have the meaning provided in
Section 9.1(h)
.
“
Moody’s
”
shall mean Moody’s Investors Service, Inc. or any successor by merger or
consolidation to its business.
“Multiemployer
Plan”
shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“
Net
Cash Proceeds
” shall mean, with respect to any Prepayment Event, (a)
the gross cash proceeds (including payments from time to time in respect
of
installment obligations, if applicable) received by or on behalf of the Parent
Borrower or any of the Restricted Subsidiaries in respect of such Prepayment
Event, as the case may be, less (b) the sum of:
(i) the
amount, if any, of all taxes paid or estimated by the Parent Borrower in
good
faith to be payable by the Parent Borrower or any of the Restricted Subsidiaries
in connection with such Prepayment Event,
(ii) the
amount of any reasonable reserve established in accordance with GAAP against
any
liabilities (other than any taxes deducted pursuant to clause (i) above)
(x)
associated with the assets that are the subject of such Prepayment Event
and
(y) retained by the Parent Borrower or any of the Restricted Subsidiaries,
provided that the amount of any subsequent reduction of such reserve (other
than
in connection with a payment in respect of any such liability) shall be deemed
to be Net Cash Proceeds of such Prepayment Event occurring on the date of
such
reduction,
(iii) the
amount of any Indebtedness (other than Indebtedness hereunder or under the
Term
Loan Facility) secured by a Lien on the assets that are the subject of such
Prepayment Event to the extent that the instrument creating or evidencing
such
Indebtedness requires that such Indebtedness be repaid upon consummation
of such
Prepayment Event,
(iv)
in
the case of any Asset Sale
Prepayment Event or Casualty Event, the amount of any proceeds of such
Prepayment Event that the Parent Borrower or any Restricted Subsidiary has
reinvested (or intends to reinvest within the Reinvestment Period or has
entered
into a binding commitment prior to the last day of the Reinvestment Period
to
reinvest) in the business of the Parent Borrower or any of the Restricted
Subsidiaries (subject to
Section 10.9
),
provided
, that any portion
of such proceeds that has not been so reinvested within such Reinvestment
Period
(with respect to such Prepayment Event, the “
Deferred Net Cash
Proceeds
”) shall, unless the Parent Borrower or a Restricted Subsidiary
has entered into a binding commitment prior to the last day of such Reinvestment
Period to reinvest such proceeds, (x) be deemed to be Net
Cash
Proceeds of an Asset Sale Prepayment Event or Casualty Event occurring
on the
last day of such Reinvestment Period or, if later, 180 days after the date
such
Parent Borrower or such Restricted Subsidiary has entered into such binding
commitment, as applicable (such last day or 180
th
day,
as
applicable, the “
Deferred Net Cash Proceeds Payment Date
”), and
(y) be applied to the repayment of Revolving Credit Loans in accordance
with
Section 5.2(a)
,
(v) in
the case of any Asset Sale Prepayment Event, Casualty Event or Permitted
Sale
Leaseback (other than the Existing DC Sale Leasebacks) by a non-wholly-owned
Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof
(calculated without regard to this
clause (v)
) attributable to minority
interests and not available for distribution to or for the account of the
Parent
Borrower or a wholly-owned Restricted Subsidiary as a result thereof,
and
(vi) reasonable
and customary fees paid by the Parent Borrower or a Restricted Subsidiary
in
connection with any of the foregoing,
in
each
case only to the extent not already deducted in arriving at the amount referred
to in
clause (a)
above.
“
Net
Orderly Liquidation Value
” shall mean the orderly liquidation value
(net of costs and expenses estimated to be incurred in connection with such
liquidation) of the Eligible Inventory that is estimated to be recoverable
in an
orderly liquidation of such Eligible Inventory, as determined from time to
time
by reference to the most recent Inventory Appraisal,
provided
, that from
October 15 through December 15 of each year such value shall be the high
value
as set forth on such Inventory Appraisal and at all other times shall be
the low
value as set forth on such Inventory Appraisal.
“
New
Revolving Credit Commitments
” shall have the meaning provided in
Section 2.14(a)
.
“
New
Revolving Loan
” shall have the meaning provided in
Section
2.14(b)
.
“
New
Revolving Loan Lender
” shall have the meaning provided in
Section 2.14(b)
.
“
Non-Cash
Charges
” shall mean, without duplication, (a) losses on
non-ordinary course asset sales, disposals or abandonments, (b) any impairment
charge or asset write-off related to intangible assets (including goodwill),
long-lived assets, and investments in debt and equity securities pursuant
to
GAAP, (c) all losses from investments recorded using the equity method, (d)
stock-based awards compensation expense, including any such charges arising
from
stock options, restricted stock grants or other equity incentive grants,
and any
cash compensation charges associated with the rollover or acceleration of
stock-based awards or payment of stock options in connection with the
Transactions, and (e) other non-cash charges (
provided
that if any
non-cash charges referred to in this
clause (e)
represent an accrual or
reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated
EBITDA to such extent, and excluding amortization of a prepaid cash item
that
was paid in a prior period).
“
Non-Consenting
Lender
” shall have the meaning provided in
Section
13.7(b)
.
“
Non-Controlled
Account
” shall have the meaning provided in
Section
9.15(a)
.
“
Non-Defaulting
Lender
” shall mean and include each Lender other than a Defaulting
Lender.
“
Non-Extension
Notice Date
” shall have the meaning provided in
Section
3.2(b)
.
“
Non-U.S.
Lender
” shall mean any Agent or Lender that is not, for United States
federal income tax purposes, (a) an individual who is a citizen or resident
of the United States, (b) a corporation, partnership or entity treated as a
corporation or partnership created or organized in or under the laws of the
United States, or any political subdivision thereof, (c) an estate whose
income is subject to U.S. federal income taxation regardless of its source
or
(d) a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United
States
persons have the authority to control all substantial decisions of such trust
or
a trust that has a valid election in effect under applicable U.S. Treasury
regulations to be treated as a United States person.
“
Non-U.S.
Participant
” shall mean any Participant that if it were a Lender would
qualify as a Non-U.S. Lender.
“
Notes
”
shall have the meaning set forth in the preamble.
“
Notes
Offerings
” shall have the meaning set forth in the
preamble.
“
Notice
of Borrowing
” shall have the meaning provided in
Section
2.3(a)
.
“
Notice
of Conversion or Continuation
” shall have the meaning provided in
Section 2.6
.
“
Obligations
”
shall mean all advances to, and debts, liabilities, obligations, covenants
and
duties of, any Credit Party arising under any Credit Document or otherwise
with
respect to any Loan or Letter of Credit or under any Secured Cash Management
Agreement or Secured Hedge Agreement, in each case, entered into with the
Parent
Borrower or any of its Subsidiaries, whether direct or indirect (including
those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue
after
the commencement by or against any Credit Party or any Affiliate thereof
of any
proceeding under any bankruptcy or insolvency law naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding. Without limiting the generality of
the foregoing, the Obligations of the Credit Parties under the Credit Documents
(and any of their Subsidiaries to the extent they have obligations under
the
Credit Documents) include the obligation (including guarantee obligations)
to
pay principal, interest, charges, expenses, fees, attorney costs, indemnities
and other amounts payable by any Credit Party under any Credit
Document.
“
Other
Taxes
” shall mean any and all present or future stamp, registration,
documentary or any other excise, property or similar taxes (including interest,
fines, penalties,
additions
to tax and related expenses with regard thereto) arising from any payment
made
or required to be made under this Agreement or any other Credit Document
or from
the execution or delivery of, registration or enforcement of, consummation
or
administration of, or otherwise with respect to, this Agreement or any
other
Credit Document.
“
Overnight
Rate
” shall mean, for any day, the greater of (a) the Federal Funds
Effective Rate and (b) an overnight rate determined by the Administrative
Agent,
the Letter of Credit Issuer, or the Swingline Lender, as the case may be,
in
accordance with banking industry rules on interbank compensation.
“
Parent
Borrower
” shall have the meaning set forth in the preamble
hereto.
“
Participant
”
shall have the meaning provided in
Section 13.6(c)
.
“
Patriot
Act
” shall have the meaning provided in
Section
13.18
.
“
PBGC
”
shall mean the Pension Benefit Guaranty Corporation established pursuant
to
Section 4002 of ERISA, or any successor thereto.
“
Pension
Act
” shall mean the Pension Protection Act of 2006, as it presently
exists or as it may be amended from time to time.
“
Perfection
Certificate
” shall mean a certificate of each Borrower in the form of
Exhibit D
or any other form approved by the Administrative
Agent.
“
Permitted
Acquisition
” shall mean the acquisition, by merger or otherwise, by the
Parent Borrower or any of the Restricted Subsidiaries of assets or Stock
or
Stock Equivalents, so long as (a) such acquisition and all transactions
related thereto shall be consummated in accordance with applicable law;
(b) such acquisition shall result in the issuer of such Stock or Stock
Equivalents and its Subsidiaries becoming a Restricted Subsidiary and a
Subsidiary Guarantor, to the extent required by
Section 9.11
; (c)
such acquisition shall result in the Administrative Agent, for the benefit
of
the applicable Lenders, being granted a security interest in any Stock, Stock
Equivalent or any assets so acquired, to the extent required by
Sections
9.11
and/or
9.14
; (d) each Person (or, as applicable, the assets) so
acquired shall be in (or with respect to assets, useful for engaging in)
the
same or generally related line of business as conducted by the Parent Borrower
and its Subsidiaries on the Closing Date; and (e) both immediately before
and after giving effect to such acquisition, no Default or Event of Default
shall have occurred and be continuing.
“
Permitted
Additional Debt
” shall mean unsecured Indebtedness issued by the Parent
Borrower or a Guarantor, (a) the terms of which (i) do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the Maturity Date (other than customary offers to purchase
upon a change of control, asset sale or event of loss and customary acceleration
rights after an event of default) and (ii) to the extent the same are
subordinated, provide for customary subordination to the Obligations under
the
Credit Documents, (b) the covenants, events of default, guarantees and
other terms of which (other than interest rate and redemption premiums),
taken
as a whole, are not more restrictive to the Parent Borrower and the Restricted
Subsidiaries than those herein (or to the extent such Permitted
Additional
Debt constitutes refinancing Indebtedness of the Senior Subordinated Notes,
those applicable to the Senior Subordinated Notes being so refinanced);
provided
that a certificate of an Authorized Officer of the Parent
Borrower is delivered to the Administrative Agent at least five Business
Days
(or such shorter period as the Administrative Agent may reasonably agree)
prior
to the incurrence of such Indebtedness, together with a reasonably detailed
description of the material terms and conditions of such Indebtedness or
drafts
of the documentation relating thereto, stating that the Parent Borrower
has
determined in good faith that such terms and conditions satisfy the foregoing
requirement shall be conclusive evidence that such terms and conditions
satisfy
the foregoing requirement unless the Administrative Agent notifies the
Parent
Borrower within such period that it disagrees with such determination (including
a reasonable description of the basis upon which it disagrees) and (c)
of which
no Subsidiary of the Parent Borrower (other than a Guarantor or any guarantor
of
the Indebtedness being refinanced by such Permitted Additional Debt, if
applicable) is an obligor.
“
Permitted
Discretion
” shall mean, as applicable, the Administrative Agent’s or
the Collateral Agent’s commercially reasonable judgment, exercised in good faith
in accordance with customary business practices for comparable asset-based
lending transactions, as to any factor, event, condition or other circumstance
which the Administrative Agent or the Collateral Agent, as applicable,
reasonably determines: (a) will or reasonably could be expected
to adversely affect in any material respect the value of any Eligible Accounts,
Eligible Credit Card Receivables or Eligible Inventory, the enforceability
or
priority of the Collateral Agent’s Liens thereon or on any other material
Collateral or the amount which the Administrative Agent, the Lenders or the
Letter of Credit Issuer would be likely to receive (after giving consideration
to delays in payment and costs of enforcement) in the liquidation of such
Eligible Accounts, Eligible Credit Card Receivables or Eligible Inventory
or
(b) evidences that any collateral report or financial information delivered
to the Administrative Agent or the Collateral Agent by any Person on behalf
of
the Parent Borrower is incomplete, inaccurate or misleading in any material
respect. In exercising such judgment, the Administrative Agent or the
Collateral Agent may consider, without duplication, factors already included
in
or tested by the definition of Eligible Accounts, Eligible Credit Card
Receivables and Eligible Inventory, and any of the
following: (i) changes after the Closing Date in any material
respect in any concentration of risk with respect to Eligible Accounts and
(ii)
any other factors arising after the Closing Date that change in any material
respect the credit risk of lending to the Borrowers on the security of the
Eligible Accounts, Eligible Credit Card Receivables and Eligible
Inventory.
“
Permitted
Holders
” shall mean each of (a) the Sponsors and (b) the
Management Investors.
“
Permitted
Intercompany Indebtedness
” shall mean all Indebtedness of the Parent
Borrower or any Restricted Subsidiary owing to the Parent Borrower or any
other
Subsidiary having a term not exceeding 364 days (inclusive of any and all
rollovers and extensions) and incurred in the ordinary course of business;
provided
that the aggregate amount of Permitted Intercompany Indebtedness
owed by Subsidiaries that are not Credit Parties to Credit Parties shall
not
exceed $100,000,000.
“
Permitted
Investments
” shall mean:
(a) securities
issued or unconditionally guaranteed by the United States government or any
agency or instrumentality thereof, in each case having maturities and/or
reset
dates of not more than 24 months from the date of acquisition
thereof;
(b) securities
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than 24 months from the date of acquisition thereof
and,
at the time of acquisition, having an investment grade rating generally
obtainable from either S&P or Moody’s (or, if at any time neither S&P
nor Moody’s shall be rating such obligations, then from another nationally
recognized rating service);
(c) commercial
paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from
either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall
be rating such obligations, an equivalent rating from another nationally
recognized rating service);
(d) domestic
and LIBOR certificates of deposit or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof issued by any Lender or any
other bank having combined capital and surplus of not less than $500,000,000
in
the case of domestic banks and $100,000,000 (or the Dollar Equivalent thereof)
in the case of foreign banks;
(e) repurchase
agreements with a term of not more than 90 days for underlying securities
of the type described in
clauses (a)
,
(b)
and
(d)
above
entered into with any bank meeting the qualifications specified in
clause
(d)
above or securities dealers of recognized national
standing;
(f) marketable
short-term money market and similar funds (x) either having assets in excess
of
$500,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P
or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service);
(g) shares
of investment companies that are registered under the Investment Company
Act of
1940 and substantially all the investments of which are one or more of the
types
of securities described in
clauses (a)
through
(f)
above;
and
(h) in
the case of Investments by any Restricted Foreign Subsidiary or Investments
made
in a country outside the United States of America, other customarily utilized
high-quality Investments in the country where such Restricted Foreign Subsidiary
is located or in which such Investment is made.
“
Permitted
Liens
” shall mean:
(a) Liens
for taxes, assessments or governmental charges or claims not yet overdue
for a
period of more than 30 days or that are being contested in good faith and
by
appropriate
proceedings for which appropriate reserves have been established to the
extent
required by and in accordance with GAAP, or for property taxes on property
that
the Parent Borrower or one of its Subsidiaries has determined to abandon
if the
sole recourse for such tax, assessment, charge or claim is to such
property;
(b) Liens
in respect of property or assets of the Parent Borrower or any of the
Subsidiaries imposed by law, such as carriers’, warehousemen’s and mechanics’
Liens and other similar Liens arising in the ordinary course of business,
in
each case so long as such Liens arise in the ordinary course of business
and do
not individually or in the aggregate have a Material Adverse
Effect;
(c) Liens
arising from judgments or decrees in circumstances not constituting an Event
of
Default under
Section 11.11
;
(d) Liens
incurred or deposits made in connection with workers’ compensation, unemployment
insurance and other types of social security, or to secure the performance
of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business or otherwise
constituting Investments permitted by
Section 10.5
;
(e) ground
leases in respect of real property on which facilities owned or leased by
the
Parent Borrower or any of its Subsidiaries are located;
(f) easements,
rights-of-way, restrictions, minor defects or irregularities in title and
other
similar charges or encumbrances not interfering in any material respect with
the
business of the Parent Borrower and its Subsidiaries, taken as a
whole;
(g) any
interest or title of a lessor or secured by a lessor’s interest under any lease
permitted by this Agreement;
(h) Liens
in favor of customs and revenue authorities arising as a matter of law to
secure
payment of customs duties in connection with the importation of
goods;
(i) Liens
on goods the purchase price of which is financed by a documentary letter
of
credit issued for the account of the Parent Borrower or any of its Subsidiaries,
provided
that such Lien secures only the obligations of the Parent
Borrower or such Subsidiaries in respect of such letter of credit to the
extent
permitted under
Section 10.1
;
(j) leases,
licenses, subleases or sublicenses granted to others not interfering in any
material respect with the business of the Parent Borrower and its Subsidiaries,
taken as a whole;
(k) Liens
arising from precautionary Uniform Commercial Code financing statement or
similar filings made in respect of operating leases entered into by the Parent
Borrower or any of its Subsidiaries;
(l) Liens
created in the ordinary course of business in favor of banks and other financial
institutions over credit balances of any bank accounts of the Parent Borrower
and the Restricted Subsidiaries held at such banks or financial institutions,
as
the case may be, to facilitate the operation of cash pooling and/or interest
set-off arrangements in respect of such bank accounts in the ordinary course
of
business;
(m) [Reserved];
and
(n) any
zoning or similar law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any real property that does not
materially interfere with the ordinary conduct of the business of the Parent
Borrower and its Subsidiaries, taken as a whole.
“
Permitted
Receivables
Financing
” shall mean any customary accounts receivable financing
facility (including customary back-to-back intercompany arrangements in respect
thereof) to the extent that (a) the maturity date is no earlier than the
maturity date applicable to the ABL Facility; (b) any collateral securing
the
obligations of the obligors thereunder shall be pledged to the Secured Parties
on a second priority basis to secure the Obligations pursuant to intercreditor
arrangement reasonably acceptable to the Administrative Agent; (c) the remaining
terms applicable to such financing facility must be, when taken as a whole,
at
least as favorable to the Lenders as the terms applicable to the ABL Facility
and (d) the proceeds of all Indebtedness incurred under such facility must,
subject to the terms of the Intercreditor Agreement, be applied to
the prepayment of Term Loans pursuant to
Section 5.2
of the Term Loan
Agreement.
“
Permitted
Sale Leaseback
” shall mean any Existing DC Sale Leaseback and Sale
Leaseback (other than any Sale Leaseback of Collateral) consummated by the
Parent Borrower or any of the Restricted Subsidiaries after the Closing Date,
provided
that any such Sale Leaseback not between (a) a Credit Party and
another Credit Party or (b) a Restricted Subsidiary that is not a Credit
Party
and another Restricted Subsidiary that is not a Credit Party is consummated
for
fair value as determined at the time of consummation in good faith by (i)
the
Parent Borrower or such Restricted Subsidiary and (ii) in the case of any
Sale
Leaseback (or series of related Sales Leasebacks) the aggregate proceeds
of
which exceed $35,000,000, the board of directors of the Parent Borrower or
such
Restricted Subsidiary (which such determination may take into account any
retained interest or other Investment of the Parent Borrower or such Restricted
Subsidiary in connection with, and any other material economic terms of,
such
Sale Leaseback).
“
Person
”
shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any
Governmental Authority.
“
PIK
Interest Amount
” shall mean the aggregate principal amount of all
increases in outstanding principal amount of Senior Subordinated Notes and
issuances of PIK Notes (as defined in the Senior Subordinated Notes Indenture)
in connection with an election by the Parent Borrower to pay interest on
the
Senior Subordinated Notes in kind.
“
Plan
”
shall mean any multiemployer or single-employer plan, as defined in Section
4001
of ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding six plan years maintained or contributed to by (or to which there
is
or was an obligation to contribute or to make payments to) the Parent Borrower
or an ERISA Affiliate.
“
Platform
”
shall have the meaning provided in
Section 13.17(b)
.
“
Post-Acquisition
Period
” shall mean, with respect to any Permitted Acquisition, the
period beginning on the date such Permitted Acquisition is consummated and
ending on the last day of the sixth full consecutive fiscal quarter immediately
following the date on which such Permitted Acquisition is
consummated.
“
Preferred
Stock
” shall mean any Stock or Stock Equivalents with preferential
rights of payment of dividends or upon liquidation, dissolution or winding
up.
“
Prepayment
Event
” shall mean any Asset Sale Prepayment Event or Casualty
Event.
“
Prime
Rate
” shall mean the “prime rate” referred to in the definition of
ABR.
“
Pro
Forma Adjustment
” shall mean, for any Test Period that includes all or
any part of a fiscal quarter included in any Post-Acquisition Period, with
respect to the Acquired EBITDA of the applicable Acquired Entity or Business
or
Converted Restricted Subsidiary or the Consolidated EBITDA of the Parent
Borrower, the pro forma increase or decrease in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, projected by the Parent Borrower
in
good faith as a result of (a) actions taken during such Post-Acquisition
Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such
Post-Acquisition Period, in each case in connection with the combination
of the
operations of such Acquired Entity or Business or Converted Restricted
Subsidiary with the operations of the Parent Borrower and the Restricted
Subsidiaries;
provided
that (i) at the election of the Parent
Borrower, such Pro Forma Adjustment shall not be required to be determined
for
any Acquired Entity or Business or Converted Restricted Subsidiary to the
extent
the aggregate consideration paid in connection with such acquisition was
less
than $5,000,000 and (ii) so long as such actions are taken during such
Post-Acquisition Period or such costs are incurred during such Post-Acquisition
Period, as applicable, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, that the applicable amount of such cost savings
will
be realizable during the entirety of such Test Period, or the applicable
amount
of such additional costs, as applicable, will be incurred during the entirety
of
such Test Period;
provided
further
that any such pro forma
increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the
case may be, shall be without duplication for cost savings or additional
costs
already included in such Acquired EBITDA or such Consolidated EBITDA, as
the
case may be, for such Test Period.
“
Pro
Forma Adjustment Certificate
” shall mean any certificate of an
Authorized Officer of the Parent Borrower delivered pursuant to
Section 9.1(h)
or
Section 9.1(d)
.
“
Pro
Forma Balance Sheet
” shall have the meaning provided in
Section
9.1
.
“
Pro
Forma Basis
”, “
Pro Forma Compliance
” and “
Pro
Forma Effect
” shall mean, with respect to compliance with any test or
covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment
shall have been made and (B) all Specified Transactions and the following
transactions in connection therewith shall be deemed to have occurred as
of the
first day of the applicable period of measurement in such test or
covenant: (a) income statement items (whether positive or negative)
attributable to the property or Person subject to such Specified Transaction,
(i) in the case of a sale, transfer or other disposition of all or
substantially all Capital Stock in any Subsidiary of the Parent Borrower
or any
division, product line, or facility used for operations of the Parent Borrower
or any of its Subsidiaries, shall be excluded, and (ii) in the case of a
Permitted Acquisition or Investment described in the definition
of “Specified Transaction”, shall be included, (b) any retirement of
Indebtedness, and (c) any incurrence or assumption of Indebtedness by the
Parent
Borrower or any of the Restricted Subsidiaries in connection therewith (it
being
agreed that if such Indebtedness has a floating or formula rate, such
Indebtedness shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate that is
or
would be in effect with respect to such Indebtedness as at the relevant date
of
determination);
provided
that, without limiting the application of the
Pro Forma Adjustment pursuant to (A) above (but without duplication thereof),
the foregoing pro forma adjustments may be applied to any such test or covenant
solely to the extent that such adjustments are consistent with the definition
of
Consolidated EBITDA and give effect to events (including operating expense
reductions) that are (i) (x) directly attributable to such transaction,
(y) expected to have a continuing impact on the Parent Borrower and the
Restricted Subsidiaries and (z) factually supportable or
(ii) otherwise consistent with the definition of Pro Forma
Adjustment.
“
Pro
Forma Entity
” shall have the meaning provided in the definition of the
term “Acquired EBITDA.”
“
Pro
Forma Financial Statements
” shall have the meaning provided in Section
9.1.
“
Projections
”
shall have the meaning provided in
Section 9.1(h)
.
“
Project
Alpha
” shall mean the decision by the Parent Borrower to eliminate the
historical packaway strategy and to close approximately 400 underperforming
stores.
“
Protective
Advance
” shall have the meaning provided in
Section
2.1(d)
.
“
Qualifying
IPO
” shall mean the issuance by the Parent Borrower or any
direct or indirect parent of the Parent Borrower of its common Stock in an
underwritten primary public offering (other than a public offering pursuant
to a
registration statement on Form S-8) pursuant to an effective registration
statement filed with the SEC in accordance with the Securities Act (whether
alone or in connection with a secondary public offering).
“
Real
Estate
” shall have the meaning provided in
Section 9.1(e)
.
“
Register
”
shall have the meaning provided in
Section 13.6(b)(iv)
.
“
Registration
Rights Agreement
” means the Registration Rights Agreement related to
the Senior Notes and the Senior Subordinated Notes, dated as of the Closing
Date, among the Parent Borrower, the other Credit Parties party thereto and
the
financial institutions party thereto, as such agreement may be amended, modified
or supplemented from time to time and, with respect to any additional notes
issued pursuant to the Indentures, one or more registration rights agreements
between the Parent Borrower and the other parties thereto, as such agreement(s)
may be amended, modified or supplemented from time to time, relating to rights
given by the Parent Borrower to the purchasers of such additional notes to
register such additional notes under the Securities Act.
“
Regulation T
”
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Regulation U
”
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Regulation X
”
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin
requirements.
“
Reimbursement
Date
” shall have the meaning provided in
Section
3.4(a)
.
“
Reinvestment
Period
” shall mean 15 months following the date of receipt of Net Cash
Proceeds of an Asset Sale Prepayment Event or Casualty Event.
“
Related
Parties
” shall mean, with respect to any specified Person, such
Person’s Affiliates and the directors, officers, employees, agents, trustees and
advisors of such Person and any Person that possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies
of such
Person, whether through the ability to exercise voting power, by contract
or
otherwise.
“
Related
Person
” shall have the meaning provided in
Section
9.15(a)
.
“
Reportable
Event
” shall mean an event described in Section 4043 of ERISA and the
regulations thereunder, other than any event as to which the thirty day notice
period has been waived.
“
Required
Lenders
” shall mean, at any date, Non-Defaulting Lenders having or
holding a majority of (a) the Adjusted Total Revolving Credit Commitment
at such
date, and (b) if the Total Revolving Credit Commitment has been terminated
or for the purposes of acceleration pursuant to
Section 11
,
Non-Defaulting Lenders having or holding a majority of the outstanding principal
amount of the Loans (other than Protective Advances) and Letter of Credit
Exposure (excluding the Loans and Letter of Credit Exposure of Defaulting
Lenders) in the aggregate at such date.
“
Requirement
of Law
” shall mean, as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person,
and
any law, treaty, rule or regulation or determination of an arbitrator or
a court
or other
Governmental
Authority, in each case applicable to or binding upon such Person or any
of its
property or assets or to which such Person or any of its property or assets
is
subject.
“
Reserves
”
shall mean the Existing Notes Reserve any and all other reserves which the
Administrative Agent or the Collateral Agent in accordance with
Section
2.15
deems necessary in its Permitted Discretion, to from time to time
establish against the gross amounts of Eligible Accounts, Eligible Inventory
and
Eligible Credit Card Receivables.
“
Restricted
Foreign Subsidiary
” shall mean a Foreign Subsidiary that is a
Restricted Subsidiary.
“
Restricted
Subsidiary
” shall mean any Subsidiary of the Parent Borrower other than
an Unrestricted Subsidiary.
“
Revolving
Credit Commitment
” shall mean, (a) with respect to each Lender that is
a Lender on the date hereof, the amount set forth opposite such Lender’s name on
Schedule 1.1(c)
as such Lender’s “Revolving Credit Commitment” (as set
forth as a Tranche A Commitment and/or a Tranche A-1 Commitment, as applicable),
as such Revolving Credit Commitment may be reduced from time to time pursuant
to
the terms hereof and (b) in the case of any Lender that becomes a Lender
after
the date hereof, the amount specified as such Lender’s “Revolving Credit
Commitment” in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total Revolving Credit Commitment, as such Revolving
Credit Commitment may be reduced from time to time pursuant to the terms
hereof,
plus, in each case, with respect to each Lender, such Lender’s New Revolving
Credit Commitment.
“
Revolving
Credit Commitment Percentage
” shall mean at any time, for each Lender,
the percentage obtained by dividing (a) such Lender’s Revolving Credit
Commitment at such time by (b) the amount of the Total Revolving Credit
Commitment at such time,
provided
that at any time when the Total
Revolving Credit Commitment shall have been terminated, each Lender’s Revolving
Credit Commitment Percentage shall be the percentage obtained by dividing
(a) such Lender’s Revolving Credit Exposure at such time by (b) the
Revolving Credit Exposure of all Lenders at such time.
“
Revolving
Credit Exposure
” shall mean, with respect to any Lender at any time,
the sum of (a) the aggregate principal amount of the Revolving Credit Loans
of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at
such time, (c) such Lender’s Revolving Credit Commitment Percentage of the
aggregate principal amount of all outstanding Swingline Loans and (d) with
respect to Protective Advances, such Lender’s Revolving Credit Commitment
Percentage of the aggregate principal amount of all outstanding Protective
Advances.
“
Revolving
Credit Lender
” shall mean, at any time, any Lender that has a Revolving
Credit Commitment at such time.
“
Revolving
Credit Loans
” shall have the meaning provided in
Section 2.1(a)
and shall include Tranche A Loans, Tranche A-1 Loans, and New Revolving Loans
as
provided in
Section 2.14(b)
“
Revolving
Credit Termination Date
” shall mean the earlier to occur of
(a) the Maturity Date and (b) the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be
outstanding and the Letters of Credit Outstanding shall have been reduced
to
zero or Cash Collateralized.
“
S&P
”
shall mean Standard & Poor’s Ratings Services or any successor by
merger or consolidation to its business.
“
Sale
Leaseback
” shall mean any transaction or series of related transactions
pursuant to which the Parent Borrower or any of the Restricted Subsidiaries
(a)
sells, transfers or otherwise disposes of any property, real or personal,
whether now owned or hereafter acquired, and (b) as part of such transaction,
thereafter rents or leases such property or other property that it intends
to
use for substantially the same purpose or purposes as the property being
sold,
transferred or disposed.
“
Scheduled
Dispositions
” shall have the meaning provided in
Section
10.4(j
).
“
SEC
”
shall mean the Securities and Exchange Commission or any successor
thereto.
“
Section
9.1 Financials
” shall mean the financial statements delivered, or
required to be delivered, pursuant to
Section 9.1(a)
or
(b)
together with the accompanying officer’s certificate delivered, or required to
be delivered, pursuant to
Section 9.1(d)
.
“Secured
Cash Management Agreement”
shall mean any Cash Management Agreement
that is entered into by and between the Parent Borrower or any of its Restricted
Subsidiaries and any Cash Management Bank.
“
Secured
Hedge Agreement
” shall mean any Hedge Agreement that is entered into by
and between the Parent Borrower or any of its Restricted Subsidiaries and
any
Hedge Bank,
provided
that any Hedge Agreement that is a Secured Hedge
Agreement as defined in the Term Loan Agreement shall not be a “Secured Hedge
Agreement”.
“
Secured
Parties
” shall mean the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer, each Lender, each Hedge Bank that is party to any
Secured Hedge Agreement, each Cash Management Bank that is a party to any
Secured Cash Management Agreement and each sub-agent pursuant to
Section
12
appointed by the Administrative Agent with respect to matters relating
to
the Credit Facilities or by the Collateral Agent with respect to matters
relating to any Security Document.
“
Securitization
”
shall mean a public or private offering by a Lender or any of its Affiliates
or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the
Loans
and the Lender’s rights under the Credit Documents.
“
Security
Agreement
” shall mean the Security Agreement entered into by the
Borrowers, the other grantors party thereto and the Collateral Agent for
the
benefit of the
Secured
Parties, substantially in the form of
Exhibit F
, as the same may be
amended, supplemented or otherwise modified from time to
time.
“
Security
Documents
” shall mean, collectively, (a) the Guarantee (if
applicable), (b) the Security Agreement, (c) the Intercreditor Agreement,
and
(d) each other security agreement or other instrument or document executed
and delivered pursuant to
Section 9.11
or
9.14
or pursuant to any
other such Security Documents or otherwise to secure or perfect the security
interest in any or all of the Obligations.
“
Senior
Notes
” shall mean (a) the Senior Notes defined in the preamble and
(b) any modification, replacement, refinancing, refunding, renewal or
extension thereof that constitutes Permitted Additional Debt.
“
Senior
Notes Indenture
” shall mean the Indenture dated as of the Closing Date,
among the Parent Borrower, the guarantors party thereto and Wells Fargo Bank,
N.A., as trustee, pursuant to which the Senior Notes are issued, as
the same may be amended, supplemented or otherwise modified from time to
time in
accordance therewith.
“
Senior
Notes Offering
” shall have the meaning set forth in the
preamble.
“
Senior
Secured Incurrence Test
” means, as of any date, the Consolidated Senior
Secured Debt to Consolidated EBITDA Ratio shall be no greater than 4.25 to
1.00.
“
Senior
Subordinated Notes
” shall mean (a) the Senior Subordinated Notes
defined in the preamble and (b) any modification, replacement, refinancing,
refunding, renewal or extension thereof that constitutes Permitted Additional
Debt.
“
Senior
Subordinated Notes Indenture
” means the Indenture dated as of the
Closing Date, among the Parent Borrower, the guarantors party thereto and
Wells
Fargo Bank, N.A., as trustee, pursuant to which the Senior Subordinated Notes
are issued, as the same may be amended, supplemented or otherwise modified
from
time to time in accordance therewith.
“
Senior
Subordinated Notes Offering
” shall have the meaning set forth in the
preamble.
“
Series
”
shall have the meaning provided in
Section 2.14
.
“
Single
Store DDA
” means any DDA that is not a Consolidated Stores DDA,
provided
that the average balance maintained per Single Store DDA
based
on the most recent Monthly Account Statements received by the Credit Parties
for
all Single Store DDAs shall not exceed $15,000.
“
Sold
Entity or Business
” shall have the meaning provided in the definition
of the term “Consolidated EBITDA”.
“
Solvent
”
shall mean, with respect to any Person, that as of the Closing Date,
(a) (i) the sum of such Person’s debt (including contingent liabilities)
does not exceed the present fair saleable value of such Person’s present assets;
(ii) such Person’s capital is not unreasonably
small
in
relation to its business as contemplated on the Closing Date; and (iii)
such
Person has not incurred and does not intend to incur, or believe that it
will
incur, debts including current obligations beyond its ability to pay such
debts
as they become due (whether at maturity or otherwise); and (b) such Person
is
“solvent” within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes
of this definition, the amount of any contingent liability at any time
shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected
to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).
“
Specified
Equity Contribution
” shall mean any cash common equity contribution
made to the Parent Borrower on, or within ten Business Days prior to, the
day on
which any Borrowing or issuance of a Letter of Credit is requested when Excess
Availability is less than $75,000,000.
“
Specified
Subsidiary
” shall mean, at any date of determination (a) any Material
Subsidiary, (b) any Unrestricted Subsidiary (i) whose total assets at the
last day of the Test Period ending on the last day of the most recent fiscal
period for which Section 9.1 Financials have been delivered were equal to
or
greater than 10% of the Consolidated Total Assets of the Parent Borrower
and the
Subsidiaries at such date, or (ii) whose revenues during such Test Period
were equal to or greater than 10% of the consolidated revenues of the Parent
Borrower and the Subsidiaries for such period, in each case determined in
accordance with GAAP, and (c) each other Unrestricted Subsidiary that is
the subject of an Event of Default under
Section 11.5
and that, when
such Subsidiary’s total assets or revenues are aggregated with the total assets
or revenues, as applicable, of each other Subsidiary that is the subject
of an
Event of Default under
Section 11.5
, would constitute a Specified
Subsidiary under
clause (b)
above.
“
Specified
Transaction
” shall mean, with respect to any period, any Investment,
any Disposition of assets, incurrence or repayment of Indebtedness, dividend,
Subsidiary designation, New Revolving Credit Commitment or other event that
by
the terms of this Agreement requires “Pro Forma Compliance” with a test or
covenant hereunder or requires such test or covenant to be calculated on
a “Pro
Forma Basis.”
“
Sponsor
”
shall mean any of KKR, GS Capital Partners VI Fund, L.P. and funds managed
by
Citigroup Private Equity LP, and each of their respective Affiliates but
excluding portfolio companies of any of the foregoing.
“SPV”
shall have the meaning provided in
Section 13.6(h)
.
“Standby
Letter of Credit”
shall mean any Letter of Credit other than a
Commercial Letter of Credit.
“
Stated
Amount
” of any Letter of Credit shall mean the maximum amount from time
to time available to be drawn thereunder, determined without regard to whether
any conditions to drawing could then be met.
“
Status
”
shall mean, as to the Parent Borrower as of any date, the existence of Level
I
Status, Level II Status or Level III Status, as the case may be, as in effect
on
such date, as determined pursuant to
Section 1.6
.
“
Stock
”
shall mean shares of capital stock or shares in the capital, as the case
may be
(whether denominated as common stock or preferred stock or ordinary shares
or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
“
Stock
Equivalents
” shall mean all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe
for
any Stock, whether or not presently convertible, exchangeable or
exercisable.
“
Subsidiary
”
of any Person shall mean and include (a) any corporation more than 50% of
whose
Stock of any class or classes having by the terms thereof ordinary voting
power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time Stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (b) any limited liability company, partnership, association,
joint venture or other entity of which such Person directly or indirectly
through Subsidiaries has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the Parent Borrower.
“
Subsidiary
Borrowers
” shall mean (a) each Domestic Subsidiary that is a party
hereto as of the Closing Date and (b) each Domestic Subsidiary that becomes
a
party to this Agreement after the Closing Date pursuant to
Section 9.11
or otherwise.
“
Successor
Borrower
” shall have the meaning provided in
Section
10.3(a)
.
“
Successor
Parent Borrower
” shall have the meaning provided in
Section
10.3(a)
.
“
Supermajority
Lenders
” shall mean, at any date, (a) Non-Defaulting Lenders having or
holding at least 75% of the Adjusted Total Revolving Credit Commitment at
such
date or (b) if the Total Revolving Credit Commitment has been terminated,
Non-Defaulting Lenders having or holding at least 75% of the outstanding
principal amount of the Loans and Letter of Credit Exposure (excluding the
Loans
and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at
such
date.
“
Swingline
Commitment
” shall mean $50,000,000.
“
Swingline
Lender
” shall mean The CIT Group/Business Credit, Inc., in its capacity
as lender of Swingline Loans hereunder, or any replacement or successor
thereto.
“
Swingline
Loans
” shall have the meaning provided in
Section 2.1(b)
.
“
Swingline
Maturity Date
” shall mean, with respect to any Swingline Loan, the date
that is five Business Days prior to the Maturity Date.
“
Syndication
Agent
” shall mean Goldman Sachs Credit Partners L.P.., together with
its affiliates, as syndication agent for the Lenders under this Agreement
and
the other Credit Documents.
“
Taxes
”
shall mean any and all present or future taxes, duties, levies, imposts,
assessments, deductions, withholdings or other similar charges imposed by
any
Governmental Authority whether computed on a separate, consolidated, unitary,
combined or other basis and any interest, fines, penalties or additions to
tax
with respect to the foregoing.
“
Term
Loan Agreement
” shall mean that certain Credit Agreement entered into
as of the Closing Date by and among the Parent Borrower, the lenders party
thereto in their capacities as lenders thereunder, Citicorp North America,
Inc.,
as administrative agent, and Goldman Sachs Credit Partners L.P. as collateral
agent thereunder, as amended, supplemented, modified, extended, renewed or
refinanced in accordance with the terms hereof and the Intercreditor
Agreement.
“
Term
Loan Facility
” shall mean the term loan credit facility evidenced by
the Term Loan Agreement.
“
Term
Loans
” shall have the meaning set forth in the Term Loan
Agreement.
“
Test
Period
” shall mean, for any determination under this Agreement, the
four consecutive fiscal quarters of the Parent Borrower then last
ended.
“
Total
Assets
” shall mean, as of any date of determination with respect to any
Person, the amount that would, in conformity with GAAP, be set forth opposite
the caption “total assets” (or any like caption) on a balance sheet of such
Person at such date.
“
Total
Revolving Credit Commitment
” shall mean the sum of the Revolving Credit
Commitments of the Lenders.
“
Tranche
A Borrowing Base
” shall mean at any time, an amount equal to the sum
of, without duplication, and in each case as of such time:
(a) the
book value of all Eligible Accounts of the Parent Borrower and each Subsidiary
Borrower multiplied by the advance rate of 90%; plus
(b) the
book value of all Eligible Credit Card Receivables of the Parent Borrower
and
each Subsidiary Borrower multiplied by the advance rate of 90%;
plus
(c) the
Net Orderly Liquidation Value of Eligible Inventory of the Parent Borrower
and
each Subsidiary Borrower multiplied by the advance rate of 85%;
minus
(d) the
sum of (i) the Existing Notes Reserve and (ii) subject to
Section 2.15
,
any and all other Reserves established (and as modified) from time to time
by
the Administrative Agent or the Collateral Agent.
“
Tranche
A Commitment
” means, with respect to each Tranche A Lender, the
commitment of such Lender to make Tranche A Loans and to acquire participations
in Letters of Credit and Protective Advances hereunder, as such commitment
may
be (a) reduced from time to time pursuant to the terms hereof , and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to the terms hereof. The initial amount of each Tranche A
Lender’s Tranche A Commitment is set forth opposite such Lender’s name on
Schedule 1.1(c)
or in the Assignment and Assumption pursuant to which
such Tranche A Lender shall have assumed its Tranche A Commitment, as
applicable, as such Lender’s “Tranche A Commitment”. The initial
aggregate amount of the Tranche A Lenders’ Tranche A Commitments is
$1,000,000,000.
“
Tranche
A Commitment Percentage
” shall mean at any time, for each Tranche A
Lender, the percentage obtained by dividing (a) such Tranche A Lender’s Tranche
A Commitment at such time by (b) the aggregate amount of Tranche A
Commitments of all Lenders at such time,
provided
that at any time when
the Tranche A Commitment shall have been terminated, each Tranche A Lender’s
Tranche A Commitment Percentage shall be the percentage obtained by dividing
(a) such Tranche A Lender’s Revolving Credit Exposure (other than in
respect of Tranche A-1 Loans) at such time by (b) the Revolving Credit
Exposure of all Lenders (other than in respect of Tranche A-1 Loans at such
time).
“
Tranche
A Lenders
” shall mean, as of any date of determination, Lenders having
a Tranche A Commitment or, if the Tranche A Commitments have been terminated,
the Lenders having Revolving Exposure (other than in respect of a Tranche
A-1
Commitment).
“
Tranche
A Loans
” shall mean a Loan made pursuant to
Section 2
(other
than a Tranche A-1 Loan).
“
Tranche
A-1 Borrowing Base
” shall mean at any time, an amount equal to the sum
of, without duplication, and in each case as of such time:
(a) the
book value of all Eligible Accounts of the Parent Borrower and each Subsidiary
Borrower multiplied by the advance rate of 90%; plus
(b) the
book value of all Eligible Credit Card Receivables of the Parent Borrower
and
each Subsidiary Borrower multiplied by the advance rate of 90%;
plus
(c) the
Net Orderly Liquidation Value of Eligible Inventory of the Parent Borrower
and
each Subsidiary Borrower multiplied by the advance rate of 97%; provided
that on
and after January 31, 2009 such advance rate shall be 95%; minus
(d) the
sum of (i) the Existing Notes Reserve and (ii) subject to
Section 2.15
,
any and all other Reserves established (and as modified) from time to time
by
the Administrative Agent or the Collateral Agent.
“
Tranche
A-1 Commitment
” means, with respect to each Tranche A-1 Lender, the
commitment of such Lender to make Tranche A-1 Loans and to acquire
participations in Letters of Credit hereunder, as such commitment may be
(a)
reduced from time to time pursuant to the terms hereof, and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to the terms hereof. The initial amount of each Tranche A-1
Lender’s Tranche A-1 Commitment is set forth opposite such Lender’s name on
Schedule 1.1(c)
or in the Assignment and Assumption pursuant to which
such Tranche A-1 Lender shall have assumed its Tranche A-1 Commitment, as
applicable, as such Lender’s “Tranche A-1 Commitment”. The initial
aggregate amount of the Tranche A-1 Lenders’ Tranche A-1 Commitments is
$125,000,000.
“
Tranche
A-1 Commitment Percentage
” shall mean at any time, for each Tranche A-1
Lender, the percentage obtained by dividing (a) such Tranche A-1 Lender’s
Tranche A-1 Commitment at such time by (b) the aggregate amount of Tranche
A-1 Commitments of all Lenders at such time,
provided
that if the Tranche
A-1 Commitments have been terminated the Tranche A-1 Commitment Percentage
shall
be the percentage immediately prior to such termination.
“
Tranche
A-1 Lenders
” means, as of any date of determination, Lenders having a
Tranche A-1 Commitment or, if the Tranche A-1 Commitments have been terminated,
the Lenders having Revolving Credit Exposure (other than in respect of a
Tranche
A Loan).
“
Tranche
A-1 Loans
” means a Loan made pursuant to
Section 2
(other than a
Tranche A Loan).
“
Tranche
A Supermajority Lenders
” shall mean, at any date, (a) Non-Defaulting
Lenders having or holding at least 75% of the Tranche A Commitments at such
date
or (b) if the Tranche A Commitments have been terminated, Non-Defaulting
Lenders
having or holding at least 75% of the outstanding principal amount of the
Tranche A Loans and Letter of Credit Exposure (excluding the Tranche A-1
Loans
and the Loans and Letter of Credit Exposure of Defaulting Tranche A Lenders)
in
the aggregate at such date.
“
Tranche
A-1 Supermajority Lenders
” shall mean, at any date, (a) Non-Defaulting
Lenders having or holding at least 75% of the Tranche A-1 Commitments at
such
date or (b) if the Tranche A-1 Commitments have been terminated, Non-Defaulting
Tranche A-1 Lenders having or holding at least 75% of the outstanding principal
amount of the Tranche A-1 Loans in the aggregate at such date.
“
Transaction
Expenses
” shall mean any fees or expenses incurred or paid by the
Parent Borrower or any of its Subsidiaries in connection with the Transactions,
this Agreement and the other Credit Documents and the transactions contemplated
hereby and thereby.
“
Transactions
”
shall mean, collectively, the transactions contemplated by this Agreement,
the
Term Loan Agreement, the Senior Notes Indenture, the Senior Subordinated
Notes
Indenture, the Merger and the Equity Investments and any repayment, repurchase,
prepayment or defeasance of Indebtedness of the Parent Borrower or any of
its
Subsidiaries in connection therewith.
“
Transferee
”
shall have the meaning provided in
Section 13.6(e)
.
“Trigger
Date
” shall mean the day following the date on which Section 9.1
Financials are delivered to the Administrative Agent for the fiscal quarter
ending on or about November 2, 2007.
“
Type
”
shall mean, as to any Revolving Credit Loan, its nature as an ABR Loan or
a
LIBOR Loan.
“
UCC
”
shall mean the Uniform Commercial Code of the State of New York or of any
other
state the laws of which are required to be applied in connection with the
perfection of security interests in any Collateral.
“
UFCA
”
shall have the meaning provided in
Section 13.20
.
“
UFTA
”
shall have the meaning provided in
Section 13.20
.
“
Unfunded
Current Liability
” of any Plan shall mean the amount, if any, by which
the Accumulated Benefit Obligation (as defined under Statement of Financial
Accounting Standards No. 87 (“
SFAS 87
”)) under the Plan as of
the close of its most recent plan year, determined in accordance with SFAS
87 as
in effect on the date hereof, exceeds the fair market value of the assets
allocable thereto.
“
Unpaid
Drawing
” shall have the meaning provided in
Section
3.4(a)
.
“Unrestricted
Subsidiary”
shall mean (a) any Subsidiary of the Parent Borrower that
is formed or acquired after the Closing Date, provided that at such time
(or
promptly thereafter) the Parent Borrower designates such Subsidiary an
Unrestricted Subsidiary in a written notice to the Administrative Agent,
(b) any
Restricted Subsidiary subsequently designated as an Unrestricted Subsidiary
by
the Parent Borrower in a written notice to the Administrative Agent, provided
that in the case of
(a)
and
(b)
, (x) such designation shall be
deemed to be an Investment (or reduction in an outstanding Investment, in
the
case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary)
on the date of such designation in an amount equal to the net book value
of the
Parent Borrower’s investment therein and such designation shall be permitted
only to the extent permitted under
Section 10.5
on the date of such
designation and (y) no Default or Event of Default would result from such
designation after giving Pro Forma Effect thereto and (c) each Subsidiary
of an
Unrestricted Subsidiary. No Subsidiary may be designated as an
Unrestricted Subsidiary if, after such designation, it would be a “Restricted
Subsidiary” for the purpose of the Term Facility, the Senior Notes or the Senior
Subordinated Notes. The Parent Borrower may, by written notice to the
Administrative Agent, re-designate any Unrestricted Subsidiary as a Restricted
Subsidiary, and thereafter, such Subsidiary shall no longer constitute an
Unrestricted Subsidiary, but only if (x) to the extent such Subsidiary has
outstanding Indebtedness on the date of such designation, immediately after
giving effect to such designation, the Parent Borrower shall be in compliance,
on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness,
with the Senior Secured Incurrence Test (and, as a condition precedent to
the
effectiveness of any such designation, the Parent Borrower shall deliver
to the
Administrative Agent a certificate setting forth in reasonable detail the
calculations demonstrating satisfaction of such test) and (y) no
Default
or Event of Default would result from such re-designation. On or
promptly after the date of its formation, acquisition, designation or
re-designation, as applicable, each Unrestricted Subsidiary (other than
an
Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered
into a
tax sharing agreement containing terms that, in the reasonable judgment
of the
Administrative Agent, provide for an appropriate allocation of tax liabilities
and benefits.
“
U.S.
Lender
” shall have the meaning provided in
Section
5.4(j)
.
“
Voting
Stock
” shall mean, with respect to any Person, such Person’s Stock or
Stock Equivalents having the right to vote for the election of directors
of such
Person under ordinary circumstances.
1.2.
Other Interpretive Provisions.
With
reference to this Agreement and each other Credit Document, unless otherwise
specified herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The
words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import
when used in any Credit Document shall refer to such Credit Document
as a whole and not to any particular provision thereof.
(c) Article,
Section, Exhibit and Schedule references are to the Credit Document in which
such reference appears.
(d) The
term “including” is by way of example and not limitation.
(e) The
term “documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings,
however
evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”; and the word “through” means “to and
including”.
(g) Section
headings herein and in the other Credit Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement
or
any other Credit Document.
1.3.
Accounting Terms
(a) All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP.
(b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance with
any
test or covenant contained in this Agreement with respect to
any
period during which any Specified Transaction occurs, the Consolidated
Total
Debt to Consolidated EBITDA Ratio, the Consolidated EBITDA to Consolidated
Interest Expense Ratio, the Consolidated Senior Secured Debt to Consolidated
EBITDA Ratio and the ratio specified in
Section 7.3
shall each be
calculated with respect to such period and such Specified Transaction on
a Pro
Forma Basis.
1.4.
Rounding
.
Any financial ratios required to be maintained by the Parent Borrower pursuant
to this Agreement (or required to be satisfied in order for a specific action
to
be permitted under this Agreement) shall be calculated by dividing the
appropriate component by the other component, carrying the result to one
place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up
if
there is no nearest number).
1.5.
References to Agreements, Laws, Etc.
Unless
otherwise expressly provided herein, (a) references to organizational documents,
agreements (including the Credit Documents) and other Contractual Requirements
shall be deemed to include all subsequent amendments, restatements, amendment
and restatements, extensions, supplements and other modifications thereto,
but
only to the extent that such amendments, restatements, amendment and
restatements, extensions, supplements and other modifications are permitted
by
any Credit Document; and (b) references to any Requirement of Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Requirement of Law.
1.6.
Determination of Status.
(a) Each
determination of Status shall be made as follows: Subject to clauses
(b) and (c), below, changes in Status resulting from changes in the Average
Daily Excess Availability shall become effective as of the first day of each
March, June, September and December and will be determined based on the Average
Daily Excess Availability for the most recently ended calendar quarter (or
in
the case of the period ending September 30, 2007, the period from the Closing
Date through September 30, 2007). Such Status shall remain in effect
until the next change to be effected pursuant to this Section 1.6.
(b) Notwithstanding
anything to the contrary contained above in this Section or elsewhere in
this
Agreement, if it is subsequently determined that the Average Daily Excess
Availability or Status set forth in any certificate delivered to the
Administrative Agent or otherwise reported to the Administrative Agent is
inaccurate for any reason and the result thereof is that the Lenders received
interest or fees for any period at a lower rate than that which would have
been
applicable had the Average Daily Excess Availability and the corresponding
applicable Status been accurately determined, then, for all purposes of this
Agreement, the Average Daily Excess Availability and Status for any day
occurring within the period during which the incorrect Average Daily Excess
Availability or Status applied shall retroactively be deemed to be the corrected
Average Daily Excess Availability and Status for such period, and any shortfall
in the interest or fees theretofore paid by the Parent Borrower for the relevant
period as a result of the miscalculation of the Average Daily Excess
Availability or Status shall be immediately due and payable. Upon
payment by the Parent Borrower of any shortfall as provided in the immediately
preceding sentence, any Default or Event of Default resulting from the failure
to pay such amounts when the interest or fees for the relevant period were
due
and payable or any representations and warranties made in this regard shall
be
deemed cured.
SECTION
2.
Amount
and Terms of Credit
1.1.
(a) (i) Subject
to and upon the terms and conditions herein set forth, each Lender having
a
Revolving Credit Commitment severally, but not jointly, agrees to make a
loan or
loans denominated in Dollars (each a “
Revolving Credit Loan
”
and, collectively, the “
Revolving Credit Loans
”) to the Parent
Borrower on behalf of the Borrowers, which Revolving Credit Loans (A) shall
be made at any time and from time to time on and after the Closing Date and
prior to the Revolving Credit Termination Date, (B) may, at the option of
the Parent Borrower on behalf of the Borrowers, be incurred and maintained
as,
and/or converted into, ABR Loans or LIBOR Loans,
provided
that all
Revolving Credit Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist entirely
of Revolving Credit Loans of the same Type, (C) may be repaid and
reborrowed in accordance with the provisions hereof, (D) shall not, for any
Lender at any time, after giving effect thereto and to the application of
the
proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time
exceeding such Lender’s Revolving Credit Commitment at such time, (E) shall
not, after giving effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of the Lenders’ Revolving Credit
Exposures at such time exceeding the lesser of the Applicable Borrowing Base
and
the Total Revolving Credit Commitment, in each case as then in effect (subject
to
Section 2.1(d)
), and (F) shall not exceed $307,300,000 of
Tranche A Loans and $125,000,000 of Tranche A-1 Loans in the aggregate
on the Closing Date;
provided
further
that the following additional
limitations shall apply: (w) no Revolving Loan shall, after giving effect
thereto and to the application of the proceeds thereof, result at any time
in
the aggregate amount of the Tranche A Lenders’ Revolving Credit Exposures (other
than with respect of Tranche A-1 Loans) at such time exceeding the Tranche
A
Borrowing Base then in effect (subject to
Section 2.1(e)
); (x) the Parent
Borrower shall not request, and the Tranche A Lenders shall be under no
obligation to fund, any Tranche A Loan unless the Borrowers have borrowed
the
full amount of the aggregate Tranche A-1 Commitments (to the extent that
such
Tranche A-1 Commitments have not been terminated); (y) the aggregate outstanding
amount of the Tranche A-1 Loans shall not exceed the aggregate amount of
Tranche
A-1 Commitments, and (z) the aggregate outstanding amount of the Tranche
A
Lenders’ Revolving Credit Exposures (other than with respect to Tranche A-1
Loans) shall not exceed the aggregate amount of Tranche A
Commitments.
(ii) Each
Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan,
provided
that
(A) any exercise of such option shall not affect the obligation of the
Borrowers to repay such Loan and (B) in exercising such option, such Lender
shall use its reasonable efforts to minimize any increased costs to the
Borrowers resulting therefrom (which obligation of the Lender shall not require
it to take, or refrain from taking, actions that it determines would result
in
increased costs for which it will not be compensated hereunder or that it
determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement,
the
provisions of
Section 2.10
shall apply). On the Maturity
Date, if not previously expired, each Lender’s Revolving Credit Commitment shall
expire and in any case all Revolving Credit Loans shall be repaid in
full.
(b)
Subject to and upon the terms and conditions herein set forth, the
Swingline Lender in its individual capacity agrees, at any time and from
time to
time on and after the Closing Date and prior to the Swingline Maturity Date,
to
make a loan or loans (each a “
Swingline Loan
” and,
collectively, the “
Swingline Loans
”) to the Parent Borrower on
behalf of the Borrowers, which Swingline Loans (i) shall be ABR Loans,
(ii) shall have the benefit of the provisions of
Section 2.1(d)
,
(iii) shall not exceed at any time outstanding the Swingline Commitment,
(iv) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Lenders’
Revolving Credit Exposures at such time exceeding the lesser of the Applicable
Borrowing Base and the Total Revolving Credit Commitment then in effect,
(v) may be repaid and reborrowed in accordance with the provisions hereof,
and (vi) shall reduce the total availability of Revolving Credit Loans on
a
dollar-for-dollar basis. Each outstanding Swingline Loan shall be
repaid in full on the Swingline Maturity Date. The Swingline Lender
shall not make any Swingline Loan after receiving a written notice from the
Parent Borrower on behalf of the Borrowers or any Lender stating that a Default
or Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice of (i) rescission of all such
notices from the party or parties originally delivering such notice or
(ii) the waiver of such Default or Event of Default in accordance with the
provisions of
Section 13.1
. All Swingline Loans shall be
Tranche A Loans and no Swingline Loan shall be made until the Borrowers
have borrowed the full amount under the Tranche A-1
Commitments.
(c) On
any Business Day but not less frequently than once per week, the Swingline
Lender may, in its sole discretion, give notice to each Tranche A Lender
that all then-outstanding Swingline Loans shall be funded with a Borrowing
of
Tranche A Loans, in which case Tranche A Loans constituting ABR Loans
(each such Borrowing, a “
Mandatory Borrowing
”) shall be made on
the immediately succeeding Business Day by each Tranche A Lender
pro
rata
based on each Tranche A Lender’s Tranche A Commitment Percentage,
and the proceeds thereof shall be applied directly to the Swingline Lender
to
repay the Swingline Lender for such outstanding Swingline Loans. Each
Tranche A Lender hereby irrevocably agrees to make such Tranche A
Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified to it in writing by the Swingline Lender notwithstanding (i) that
the
amount of the Mandatory Borrowing may not comply with the minimum amount
for
each Borrowing specified in
Section 2.2
, (ii) whether any conditions
specified in
Section 7
are then satisfied, (iii) whether a Default or an
Event of Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing or (v) any reduction in the Tranche A Commitment or the
Tranche A Borrowing Base after any such Swingline Loans were
made. In the event that, in the sole judgment of the Swingline
Lender, any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of any Borrower), each
Tranche A Lender hereby agrees that it shall forthwith purchase from the
Swingline Lender (without recourse or warranty) such participation of the
outstanding Swingline Loans as shall be necessary to cause the Lenders to
share
in such Swingline Loans ratably based upon their respective Tranche A
Commitment Percentages,
provided
that all principal and interest payable
on such Swingline Loans shall be for the account of the Swingline Lender
until
the date the respective participation is purchased and, to the extent
attributable to the purchased participation, shall be payable to such Lender
purchasing same from and after such date of purchase.
(d) Subject
to the limitations set forth below (and notwithstanding anything to the contrary
in
Section 2.1(a)(iv)
or in
Section 7)
the Administrative Agent is
authorized by the Parent Borrower on behalf of the Borrowers and the Lenders,
from time to time in the Administrative Agent’s sole discretion (but shall have
absolutely no obligation), to make Revolving Credit Loans that are ABR Loans
on
behalf of all Tranche A Lenders to the Parent Borrower on behalf of the
Borrowers, at any time that any condition precedent set forth in
Section
7
has not been satisfied or waived, which the Administrative Agent, in
its
Permitted Discretion, deems necessary or desirable (x) to preserve or protect
the Collateral, or any portion thereof or (y) to enhance the likelihood of,
or
maximize the amount of, repayment of the Loans and other Obligations (each
such
loan, a “
Protective Advance
”). Any Protective
Advance may be made in a principal amount that would cause the aggregate
amount
of the Lenders’ Revolving Credit Exposures to exceed the Tranche A
Borrowing Base;
provided
that no Protective Advance may be made to the
extent that, after giving effect to such Protective Advance (together with
the
outstanding principal amount of any outstanding Protective Advances), the
aggregate principal amount of all Protective Advances outstanding hereunder
would exceed 5% of the Tranche A Borrowing Base as determined on the date
of such proposed Protective Advance;
provided
further
that (i) the
aggregate amount of outstanding Protective Advances plus the aggregate Revolving
Credit Exposures at such time shall not exceed the Total Revolving Credit
Commitment as then in effect and (ii) the aggregate amount of outstanding
Protective Advances plus the aggregate Revolving Credit Exposures (other
than
with respect to Tranche A-1 Loans) at such time shall not exceed the Total
Revolving Credit Commitment (other than with respect to the aggregate Tranche
A-1 Commitments) as then in effect. Each Protective Advance shall be
secured by the Liens in favor of the Collateral Agent on behalf of the Secured
Parties in and to the Collateral and shall constitute Obligations
hereunder. The Administrative Agent’s authorization to make
Protective Advances may be revoked at any time by the Required
Lenders. Any such revocation must be in writing and will become
effective prospectively upon the Administrative Agent’s receipt
thereof. The making of a Protective Advance on any one occasion shall
not obligate the Administrative Agent to make any Protective Advance on any
other occasion and under no circumstance shall the Parent Borrower have the
right to require that a Protective Advance be made. At any time that
the conditions precedent set forth in
Section 7
have been satisfied or
waived, the Administrative Agent may request the Tranche A Lenders to make
a Tranche A Loan to repay a Protective Advance. At any other
time, the Administrative Agent may require the Lenders to fund their risk
participations described in
Section 2.1(e)
.
(e) Upon
the making of a Protective Advance by the Administrative Agent (whether before
or after the occurrence of a Default or an Event of Default), each
Tranche A Lender shall be deemed, without further action by any party
hereto, unconditionally and irrevocably to have purchased from the
Administrative Agent, without recourse or warranty, an undivided interest
and
participation in such Protective Advance in proportion to its Tranche A
Commitment Percentage. From and after the date, if any, on which any
Lender is required to fund its participation in any Protective Advance purchased
hereunder, the Administrative Agent shall promptly distribute to such Lender
such Lender’s Tranche A Commitment Percentage of all payments of principal
and interest and all proceeds of Collateral received by the Administrative
Agent
in respect of such Protective Advance.
2.2.
Minimum
Amount of Each Borrowing; Maximum Number of Borrowings
.
The aggregate principal amount of (i) each Borrowing of Revolving Credit
Loans
shall be in a minimum amount of at least the Minimum Borrowing Amount for
such
Type of Loans and in a multiple of $100,000 in excess thereof and (ii) Swingline
Loans shall be in a minimum amount of at least the Minimum Borrowing Amount
for
Swingline Loans and in a multiple of $100,000 in excess thereof (except that
Mandatory Borrowings and Protective Advances shall be made in the amounts
required by
Sections 2.1(c)
and
2.1(d)
, respectively, and
Revolving Credit Loans to reimburse the Letter of Credit Issuer with respect
to
any Unpaid Drawing shall be made in the amounts required by
Section 3.3
or
Section 3.4
, as applicable). More than one Borrowing may be
incurred on any date,
provided
that at no time shall there be outstanding
more than 20 Borrowings of LIBOR Loans under this Agreement.
2.3.
Notice
of Borrowing
; Determination of Class of Loans
.
(a) Whenever
any Borrower desires to incur Revolving Credit Loans (other than Mandatory
Borrowings or borrowings to repay Unpaid Drawings), the Parent Borrower on
behalf of the Borrowers shall give the Administrative Agent at the
Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City time) at
least three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Revolving Credit Loans if such
Revolving Credit Loans are to be initially LIBOR Loans (or prior to 9:00
a.m.
(New York City time) two Business Days’ prior written notice in the case of a
Borrowing of Revolving Credit Loans to be made on the Closing Date initially
as
LIBOR loans) and (ii) written notice (or telephonic notice promptly
confirmed in writing) prior to 1:00 p.m. (New York City time) on the date
of
each Borrowing of Revolving Credit Loans that are to be ABR
Loans. Such notice (together with each notice of a Borrowing of
Swingline Loans pursuant to
Section 2.3(b)
, a “
Notice of
Borrowing
”) shall specify (i) the aggregate principal amount of the
Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date
of
the Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of ABR Loans and/or LIBOR Loans and, if
LIBOR
Loans, the Interest Period to be initially applicable thereto (if no Interest
Period is selected, the Parent Borrower shall be deemed to have selected
an
Interest Period of one month’s duration). The Administrative Agent
shall promptly give each Revolving Credit Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing of Revolving
Credit Loans, of such Lender’s Revolving Credit Commitment Percentage thereof
and of the other matters covered by the related Notice of
Borrowing.
(b) Whenever
any Borrower desires to incur Swingline Loans hereunder, the Parent Borrower
on
behalf of the Borrowers shall give the Administrative Agent written notice
(or
telephonic notice promptly confirmed in writing) of each Borrowing of Swingline
Loans prior to 2:00 p.m. (New York City time) on the date of such
Borrowing. Each such notice shall specify (i) the aggregate principal
amount of the Swingline Loans to be made pursuant to such Borrowing and (ii)
the
date of Borrowing (which shall be a Business Day). The Administrative
Agent shall promptly give the Swingline Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing of Swingline
Loans and of the other matters covered by the related Notice of
Borrowing.
(c) Mandatory
Borrowings shall be made upon the notice specified in
Section 2.1(c)
, with the Parent Borrower on behalf of the Borrowers
irrevocably agreeing, by its incurrence of any Swingline Loan, to the making
of
Mandatory Borrowings as set forth in such Section.
(d) Borrowings
to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a)
.
(e) Without
in any way limiting the obligation of any Borrower to confirm in writing
any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis
of
such telephonic notice believed by the Administrative Agent in good faith
to be
from an Authorized Officer of such Borrower.
(f) Notwithstanding
anything to the contrary contained herein, all Loans to the Borrowers shall
be
made as Tranche A-1 Loans until, as of the time of any Notice of Borrowing,
the
aggregate outstanding principal amount of such Loans equals the Tranche A-1
Commitments then in effect and thereafter all Loans shall be Tranche A
Loans. If any Tranche A-1 Loan is prepaid in part pursuant to the
terms hereof, any Loans to the Borrowers thereafter requested shall be Tranche
A-1 Loans until, as of the time of any Notice of Borrowing, the aggregate
outstanding principal amount of all Tranche A-1 Loans equals the Tranche
A-1
Commitments then in effect and thereafter all Loans shall be Tranche A Loans
(until another such prepayment, as described in this sentence).
2.4.
Disbursement
of Funds
.
(b) Each
Lender shall make available all amounts it is to fund to the Parent Borrower
on
behalf of the Borrowers under any Borrowing for its applicable Commitments
in
immediately available funds to the Administrative Agent at the Administrative
Agent’s Office in Dollars, and the Administrative Agent will (except in the case
of Mandatory Borrowings and Borrowings to repay Unpaid Drawings) make available
to the Parent Borrower on behalf of the Borrowers, by depositing to an account
designated by the Parent Borrower on behalf of the Borrowers to the
Administrative Agent the aggregate of the amounts so made available in
Dollars. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of any such Borrowing that such Lender does
not
intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent
may
assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing, and the Administrative Agent, in
reliance
upon
such
assumption, may (in its sole discretion and without any obligation to do
so)
make available to the Parent Borrower on behalf of the Borrowers a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent by such Lender and the Administrative Agent has
made
available such amount to the Parent Borrower on behalf of the Borrowers,
the
Administrative Agent shall be entitled to recover such corresponding amount
from
such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor the Administrative
Agent shall promptly notify the Borrowers and the Borrowers shall immediately
pay such corresponding amount to the Administrative Agent in
Dollars. The Administrative Agent shall also be entitled to recover
from such Lender or the Borrowers interest on such corresponding amount
in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrowers to the date such corresponding
amount is recovered by the Administrative Agent, at a rate
per annum
equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid
by the
Borrowers, the then-applicable rate of interest or fees, calculated in
accordance with
Section 2.8
, for the respective
Loans.
(c)
Nothing in this
Section 2.4
shall be deemed to relieve any Lender
from its obligation to fulfill its commitments hereunder or to prejudice
any
rights that any Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall
be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5.
Repayment
of Loans; Evidence of Debt
.
(a) The
Parent Borrower on behalf of the Borrowers shall repay to the Administrative
Agent, for the benefit of the Revolving Credit Lenders, on the Maturity Date,
the then outstanding Revolving Credit Loans made to the
Borrowers. The Parent Borrower on behalf of the Borrowers shall repay
to the Administrative Agent, for the account of the Swingline Lender, on
the
Swingline Maturity Date, the then outstanding Swingline Loans.
(b) The
Parent Borrower on behalf of the Borrowers shall repay to the Administrative
Agent the then unpaid amount of each Protective Advance on the Maturity
Date.
(c) [Reserved].
(d) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers to the appropriate
lending
office of such Lender resulting from each Loan made by such lending office
of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Lender from time to time
under
this Agreement.
(e) The
Administrative Agent shall maintain the Register pursuant to
Section 13.6(b)
, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount of each
Loan
made hereunder, whether such Loan is a Revolving Credit Loan, Protective
Advance
or Swingline Loan, as applicable, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrowers to each Lender
or
the
Swingline
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrowers and each Lender’s share
thereof.
(f) The
entries made in the Register and accounts and subaccounts maintained pursuant
to
clauses (d)
and
(e)
of this
Section 2.5
shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and
amounts of the obligations of the Borrowers therein recorded;
provided
,
however
, that the failure of any Lender or the Administrative Agent
to
maintain such account, such Register or such subaccount, as applicable, or
any
error therein, shall not in any manner affect the obligation of the applicable
Borrower to repay (with applicable interest) the Loans made to the Borrowers
by
such Lender in accordance with the terms of this Agreement.
2.6.
Conversions
and Continuations
.
(a) Subject
to the penultimate sentence of this
clause (a)
, (x) the Parent Borrower
on behalf of the Borrowers shall have the option on any Business Day to convert
all or a portion equal to at least $5,000,000 plus $1,000,000 increments
in
excess thereof of the outstanding principal amount of Revolving Credit Loans
of
one Type into a Borrowing or Borrowings of another Type and (y) the Parent
Borrower on behalf of the Borrowers shall have the option on any Business
Day to
continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans
for
an additional Interest Period,
provided
that (i) no partial conversion of
LIBOR Loans shall reduce the outstanding principal amount of LIBOR Loans
made
pursuant to a single Borrowing to less than the Minimum Borrowing Amount,
(ii)
ABR Loans may not be converted into LIBOR Loans if a Default or Event of
Default
is in existence on the date of the conversion and the Administrative Agent
has
or the Required Lenders have determined in its or their sole discretion not
to
permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR
Loans for an additional Interest Period if a Default or Event of Default
is in
existence on the date of the proposed continuation and the Administrative
Agent
has or the Required Lenders have determined in its or their sole discretion
not
to permit such continuation, (iv) Borrowings resulting from conversions pursuant
to this
Section 2.6
shall be limited in number as provided in
Section
2.2
and (v) Swingline Loans and Protective Advances may not be
converted to LIBOR Loans. Each such conversion or continuation shall
be effected by the Parent Borrower by giving the Administrative Agent at
the
Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least
(i) three Business Days’, in the case of a continuation of or conversion to
LIBOR Loans or (ii) one Business Day’s in the case of a conversion into ABR
Loans, prior written notice (or telephonic notice promptly confirmed in writing)
(each, a “
Notice of Conversion or Continuation
”) specifying the
Loans to be so converted or continued, the Type of Loans to be converted
into or
continued and, if such Loans are to be converted into or continued as LIBOR
Loans, the Interest Period to be initially applicable thereto (if no Interest
Period is selected, the Parent Borrower shall be deemed to have selected
an
Interest Period of one month’s duration). The Administrative Agent
shall give each applicable Lender notice as promptly as practicable of any
such
proposed conversion or continuation affecting any of its Loans.
(b) If
any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuation, such
LIBOR
Loans shall be automatically converted on the last day of the current Interest
Period into ABR Loans. If upon the expiration of any Interest Period
in respect of LIBOR Loans, the Parent Borrower has failed to elect a new
Interest Period to be applicable thereto as provided in
clause (a)
above, the Parent Borrower shall be deemed to have elected to convert such
Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of
the
expiration date of such current Interest Period.
2.7.
Pro
Rata
Borrowings
.
Each Borrowing of Revolving Credit Loans under this Agreement shall be made
by
the Lenders
pro rata
on the basis of their then applicable Revolving
Credit Commitment Percentages. It is understood that (a) no Lender
shall be responsible for any default by any other Lender in its obligation
to
make Loans hereunder and that each Lender severally but not jointly shall
be
obligated to make the Loans provided to be made by it hereunder, regardless
of
the failure of any other Lender to fulfill its commitments hereunder and
(b)
failure by a Lender to perform any of its obligations under any of the Credit
Documents shall not release any Person from performance of its obligation
under
any Credit Document.
2.8.
Interest
.
(a) The
unpaid principal amount of each ABR Loan shall bear interest from the date
of
the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a
rate
per annum
that shall at all times be the Applicable Margin plus
the ABR, in each case, in effect from time to time.
(b) The
unpaid principal amount of each LIBOR Loan shall bear interest from the date
of
the Borrowing thereof until maturity thereof (whether by acceleration or
otherwise) at a rate
per annum
that shall at all times be the
Applicable Margin plus the relevant LIBOR Rate.
(c) If
all or a portion of (i) the principal amount of any Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate
per annum
that is (the “
Default Rate
”) (x)
in the case of overdue principal, the rate that would otherwise be applicable
thereto
plus
2% or (y) in the case of any overdue interest, to the
extent permitted by applicable law, the rate described in
Section 2.8(a)
plus
2% from the date of such non-payment to
the date on which such amount is paid in full (after as well as before
judgment).
(d) Interest
on each Loan shall accrue from and including the date of any Borrowing to
but
excluding the date of any repayment thereof and shall be payable in Dollars;
provided
that any Loan that is repaid on the same date on which it is
made shall bear interest for one day. Except as provided below,
interest shall be payable (i) in respect of each ABR Loan, quarterly in arrears
on the first Business Day of each February, May, August and November, (ii)
in
respect of each LIBOR Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months,
on
each date occurring at three-month intervals after the first day of such
Interest Period, (iii) in respect of each Loan, (A) on any prepayment, (B)
at maturity (whether by acceleration or otherwise) and (C) after such maturity,
on demand.
(e) All
computations of interest hereunder shall be made in accordance with
Section 5.5
.
(f) The
Administrative Agent, upon determining the interest rate for any Borrowing
of
LIBOR Loans, shall promptly notify the Parent Borrower and the relevant Lenders
thereof. Each such determination shall, absent clearly demonstrable
error, be final and conclusive and binding on all parties hereto.
2.9.
Interest
Periods
. At the time the Parent Borrower gives a Notice of
Borrowing or Notice of Conversion or Continuation in respect of the making
of,
or conversion into or continuation as, a Borrowing of LIBOR Loans in accordance
with Section 2.6(a), the Parent Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall,
at
the option of the Parent Borrower be a one, two, three or six or (if available
to all the Lenders making such LIBOR Loans as determined by such Lenders
in good
faith based on prevailing market conditions) a nine or twelve month
period
.
Notwithstanding
anything to the contrary contained above:
(a) the
initial Interest Period for any Borrowing of LIBOR Loans shall commence on
the
date of such Borrowing (including the date of any conversion from a Borrowing
of
ABR Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest
Period
expires;
(b) if
any Interest Period relating to a Borrowing of LIBOR Loans begins on the
last
Business Day of a calendar month or begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of the calendar
month at the end of such Interest Period;
(c) if
any Interest Period would otherwise expire on a day that is not a Business
Day,
such Interest Period shall expire on the next succeeding Business Day,
provided
that if any Interest Period in respect of a LIBOR Loan would
otherwise expire on a day that is not a Business Day but is a day of the
month
after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day; and
(d) no
Borrower shall be entitled to elect any Interest Period in respect of any
LIBOR
Loan if such Interest Period would extend beyond the Maturity Date.
2.10.
Increased Costs, Illegality, Etc
.
(a) In
the event that (x) in the case of
clause (i)
below, the
Administrative Agent or (y) in the case of
clauses (ii)
and
(iii)
below, any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i)
on any date for determining the LIBOR Rate for any Interest Period that
(x) deposits in the principal amounts and currencies of the Loans
comprising such LIBOR Borrowing are not generally available in the relevant
market or (y) by reason of
any
changes arising on or after the Closing Date affecting the interbank LIBOR
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of LIBOR Rate;
or
(ii)
at any time, that such Lender shall incur increased costs or reductions in
the
amounts received or receivable hereunder with respect to any LIBOR Loans
(other
than any increase or reduction attributable to Taxes) because of (x) any
change
since the date hereof in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in
official reserve requirements, and/or (y) other circumstances affecting the
interbank LIBOR market or the position of such Lender in such market;
or
(iii) at
any time, that the making or continuance of any LIBOR Loan has become unlawful
as a result of compliance by such Lender in good faith with any law,
governmental rule, regulation, guideline or order (or would conflict with
any
such governmental rule, regulation, guideline or order not having the force
of
law even though the failure to comply therewith would not be unlawful), or
has
become impracticable as a result of a contingency occurring after the date
hereof that materially and adversely affects the interbank LIBOR
market;
then,
and
in any such event, such Lender (or the Administrative Agent, in the case
of
clause (i)
above) shall within a reasonable time thereafter give
notice (if by telephone, confirmed in writing) to the Parent Borrower on
behalf
of the Borrowers and to the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of
clause (i)
above, LIBOR Loans shall no longer be available until such time as the
Administrative Agent notifies the Parent Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice the Administrative Agent agrees to give at such time
when
such circumstances no longer exist), and any Notice of Borrowing or Notice
of
Conversion given by the Parent Borrower with respect to LIBOR Loans that
have
not yet been incurred shall be deemed rescinded by the Parent Borrower,
(y) in the case of
clause (ii)
above, the Borrowers shall pay
to such Lender, promptly after receipt of written demand therefor such
additional amounts as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed
that a written notice as to the additional amounts owed to such Lender, showing
in reasonable detail the basis for the calculation thereof, submitted to
the
Parent Borrower by such Lender shall, absent clearly demonstrable error,
be
final and conclusive and binding upon all parties hereto) and (z) in the
case of
subclause (iii)
above, the Borrowers shall take one of the
actions specified in
Section 2.10(b)
as promptly as possible and, in
any event, within the time period required by law.
(b) At
any time that any LIBOR Loan is affected by the circumstances described in
Section 2.10(a)(ii)
or
(iii)
, the Parent Borrower on behalf of the
Borrowers may (and in the case of a LIBOR Loan affected pursuant to
Section
2.10(a)(iii)
shall) either (x) if the affected LIBOR Loan is then being made
pursuant to a Borrowing, cancel such Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same
date
that the Parent Borrower was notified by a Lender pursuant to
Section
2.10(a)(ii)
or
(iii)
or (y) if the affected LIBOR Loan is then outstanding, upon at
least three Business Days’ notice to the Administrative Agent, require the
affected Lender to convert each such LIBOR Loan into an ABR Loan,
provided
that if more than one Lender is affected at any time, then all
affected Lenders must be treated in the same manner pursuant to this
Section 2.10(b)
.
(c)
If, after the date hereof, any Change in Law relating to capital adequacy
of any Lender or compliance by any Lender or its parent with any Change in
Law
relating to capital adequacy occurring after the date hereof, has or would have
the effect of reducing the rate of return on such Lender’s or its parent’s or
its Affiliate’s capital or assets as a consequence of such Lender’s commitments
or obligations hereunder to a level below that which such Lender or its parent
or its Affiliate could have achieved but for such Change in Law (taking into
consideration such Lender’s or its parent’s policies with respect to capital
adequacy), then from time to time, promptly after demand by such Lender (with
a
copy to the Administrative Agent), the Borrowers shall pay to such Lender
such
additional amount or amounts as will compensate such Lender or its parent
for
such reduction, it being understood and agreed, however, that a Lender shall
not
be entitled to such compensation as a result of such Lender’s compliance with,
or pursuant to any request or directive to comply with, any law, rule or
regulation as in effect on the date hereof. Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this
Section 2.10(c)
, will give prompt written notice thereof to the
Parent Borrower, which notice shall set forth in reasonable detail the basis
of
the calculation of such additional amounts, although the failure to give
any
such notice shall not, subject to
Section 2.13
, release or diminish
the Borrowers’ obligations to pay additional amounts pursuant to this
Section 2.10(c)
upon receipt of such notice.
(d)
It is understood that this
Section 2.10
shall not apply to (i)
Taxes indemnifiable under
Section 5.4
, (ii) net income taxes and
franchise and excise taxes (imposed in lieu of net income taxes) imposed
on any
Agent or Lender or (iii) Taxes included under
clauses (c)
and
(d)
of the definition of Excluded Taxes.
2.11.
Compensation.
If (a) any payment of principal of any LIBOR Loan is made by any Borrower
to or for the account of a Lender other than on the last day of the Interest
Period for such LIBOR Loan as a result of a payment or conversion pursuant
to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
13.7
, as a result of acceleration
of the maturity of the Loans pursuant
to
Section 11
or for any other reason, (b) any Borrowing of LIBOR
Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any
ABR Loan is not converted into a LIBOR Loan as a result of a withdrawn Notice
of
Conversion or Continuation, (d) any LIBOR Loan is not continued as a LIBOR
Loan, as the case may be, as a result of a withdrawn Notice of Conversion
or
Continuation or (e) any prepayment of principal of any LIBOR Loan is not
made as a result of a withdrawn notice of prepayment pursuant to
Section 5.1
or
5.2
, the Borrowers shall after the Parent
Borrower’s receipt of a written request by such Lender (which request shall set
forth in reasonable detail the basis for requesting such amount), pay to
the
Administrative Agent for the account of such Lender any amounts required
to
compensate such Lender for any additional losses, costs or expenses that
such
Lender may reasonably incur as a result of such payment, failure to convert,
failure to continue or failure to prepay, including any loss, cost or expense
(excluding loss of anticipated profits) actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
to
fund or maintain such LIBOR Loan.
2.12.
Change of Lending Office.
Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
,
3.5
or
5.4
with respect to such Lender, it
will, if requested by
the Parent Borrower use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans
affected by such event,
provided
that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in
this
Section 2.12
shall affect or postpone any of the obligations of the
Borrowers or the right of any Lender provided in
Section 2.10
,
3.5
or
5.4
.
2.13.
Notice of Certain Costs
.
Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by
Section 2.10
,
2.11
,
3.5
or
5.4
is given by any
Lender more than 180 days after such Lender has knowledge (or should have
had knowledge) of the occurrence of the event giving rise to the additional
cost, reduction in amounts, loss, tax or other additional amounts described
in
such Sections, such Lender shall not be entitled to compensation under
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case may
be, for any such amounts incurred or accruing prior to the 181st day prior
to
the giving of such notice to the Parent Borrower.
2.14.
Incremental Facilities
.
(a) The
Parent Borrower on behalf of the Borrowers may by written notice to the
Administrative Agent elect to request the establishment of one or more increases
in Tranche A Commitments (the “
New Revolving Credit
Commitments
”), by an amount not in excess of the Maximum Incremental
Facilities Amount in the aggregate from the Closing Date and not less than
$50,000,000 individually (or such lesser individual amount as shall constitute
all remaining available amounts under the Maximum Incremental Facilities
Amount
on such date). Each such notice shall specify the date (each, an
“
Increased Amount Date
”) on which the Parent Borrower proposes
that the New Revolving Credit Commitments shall be effective, which shall
be a
date not less than ten Business Days after the date on which such notice
is
delivered to the Administrative Agent. The Parent Borrower may
approach any Lender or any other Person (other than a natural person) with
the
consent of the Administrative Agent (such consent not to be unreasonably
withheld) to provide all or a portion of the New Revolving Credit Commitments;
provided
that any Lender offered or approached to provide all or a
portion of the New Revolving Credit Commitments may elect or decline, in
its
sole discretion, to provide a New Revolving Credit Commitment. In
each case, such New Revolving Credit Commitments shall become effective as
of
the applicable Increased Amount Date;
provided
that (i) no Default
or Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Revolving Credit Commitments, as applicable;
(ii) both before and after giving effect to the making of any Series of
Revolving Credit Loans, each of the conditions set forth in
Section 7
shall be satisfied; (iii) the New Revolving Credit Commitments shall be
effected pursuant to one or more Joinder Agreements executed and delivered
by
the Borrowers and Administrative Agent, and each of which shall be recorded
in
the Register and shall be subject to the requirements set forth in
Section
5.4(e)
; (iv) the Parent Borrower on behalf of the Borrowers shall make
any payments required pursuant to
Section 2.11
in connection with the New
Revolving Credit Commitments, as applicable; and (v) the Parent Borrower
shall deliver or cause to be delivered any legal opinions or other documents
reasonably requested by
Administrative
Agent in connection with any such transaction. Any New Revolving
Loans made on an Increased Amount Date shall be designated, a separate
series (a
“
Series
”) of New Revolving Credit for all purposes of this
Agreement.
(b) On
any Increased Amount Date on which New Revolving Loan Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each
of the Lenders with Tranche A Commitments shall assign to each Lender with
a New
Revolving Credit Commitment (each, a “
New Revolving Loan
Lender
”) and each of the New Revolving Loan Lenders shall purchase from
each of the Lenders with Tranche A Commitments, at the principal amount thereof
(together with accrued interest), such interests in the Tranche A Loans
outstanding on such Increased Amount Date as shall be necessary in order
that,
after giving effect to all such assignments and purchases, such Tranche A
Loans
will be held by existing Tranche A Lenders and New Revolving Loan Lenders
ratably in accordance with their Tranche A Commitments after giving effect
to
the addition of such New Revolving Credit Commitments to the Tranche A
Commitments, (b) each New Revolving Credit Commitment shall be deemed for
all purposes a Tranche A Commitment and each Loan made thereunder (a
“
New Revolving Loan
”) shall be deemed, for all purposes, a
Tranche A Loan and (c) each New Revolving Loan Lender shall become a Lender
with
respect to the New Revolving Loan Commitment and all matters relating
thereto. For avoidance of doubt, on and after any Increased Amount
Date, no Lender shall be required to incur Revolving Credit Exposure in excess
of such Lender’s Revolving Credit Commitment as of the day immediately preceding
such Increased Amount Date unless, and then only to the extent, that such
Lender
has issued a New Revolving Credit Commitment effective as of such Increased
Amount Date. Notwithstanding anything to the contrary contained
herein, (x) to the extent the first $100,000,000 of the Maximum Incremental
Facilities Amount, or any portion thereof, shall comprise New Revolving Credit
Commitments to be obtained by the Parent Borrower pursuant to this
Section
2.14
, such New Revolving Credit Commitments (and corresponding New Revolving
Loans) shall not be permitted to be obtained hereunder unless the Consolidated
Senior Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma basis after
giving effect to the incurrence of such Indebtedness, shall be no greater
than
4.25 to 1.00 on the date of such incurrence (based on the Consolidated EBITDA
as
of the most recent Test Period); and (y) with respect to all remaining New
Revolving Credit Commitments to be obtained by the Parent Borrower pursuant
to
this
Section 2.14
, such New Revolving Credit Commitments (and
corresponding New Revolving Loans) shall not be permitted to be obtained
hereunder unless the Consolidated Senior Secured Debt to Consolidated EBITDA
Ratio, on a Pro Forma basis after giving effect to the incurrence of such
Indebtedness, shall be no greater than 4.00 to 1.00 on the date of such
incurrence (based on the Consolidated EBITDA as of the most recent Test
Period).
(c) [Reserved].
(d) The
terms and provisions of the New Revolving Loans and New Revolving Credit
Commitments shall be, except as otherwise set forth herein or in the applicable
Joinder Agreement identical to the existing Tranche A Loans and the Tranche
A
Commitment.
(e) Each
Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary
or
appropriate, in the opinion of the Administrative Agent, to effect the
provision
of this
Section 2.14
.
2.15.
Reserves, etc.
Notwithstanding
anything in this Agreement to the contrary, the Administrative Agent or the
Collateral Agent may at any time and from time to time in the exercise of
its
Permitted Discretion (a) establish and increase or decrease Reserves and
(b)
adjust any of the applicable criteria, establish new eligibility or
ineligibility criteria and reduce advance rates (or increase advance rates
up to
the levels in effect on the Closing Date) with respect to Eligible Accounts,
Eligible Credit Card Receivables and Eligible Inventory;
provided
that
the Administrative Agent or the Collateral Agent, as the case may be, shall
have
provided the Parent Borrower at least three Business Days’ prior written notice
of any such establishment, increase, decrease or adjustment; and
provided
further
that circumstances, conditions, events or
contingencies arising prior to the Closing Date and disclosed to the Lead
Arrangers and the Administrative Agent prior to the Closing Date shall not
be
the basis for any establishment or modification of Reserves, eligibility
criteria or advance rates unless (i) in the case of Reserves and
eligibility criteria, such Reserves or eligibility criteria (A) were established
on the Closing Date, or (B) relate to taxes, whether or not existing on the
Closing Date or (ii) such circumstances, conditions, events or
contingencies shall have changed in a material respect since the Closing
Date. The amount of any Reserve established by the Administrative
Agent or the Collateral Agent, as the case may be, shall have a reasonable
relationship to the event, condition, other circumstance or new fact that
is the
basis for the Reserve. Upon delivery of such notice, the
Administrative Agent or the Collateral Agent, as the case may be, shall be
available to discuss the proposed Reserve or increase, and the Credit Parties
may take such action as may be required so that the event, condition,
circumstance or new fact that is the basis for such Reserve or increase no
longer exists, in a manner and to the extent reasonably satisfactory to the
Administrative Agent or the Collateral Agent, as the case may be, in the
exercise of its Permitted Discretion. In no event shall such notice
and opportunity limit the right of the Administrative Agent or the Collateral
Agent, as the case may be, to establish or change such Reserve, unless the
Administrative Agent or the Collateral Agent, as the case may be, shall have
determined in its Permitted Discretion that the event, condition, other
circumstance or new fact that is the basis for such new Reserve or such change
no longer exits or has otherwise been adequately addressed by the Credit
Parties.
SECTION
3.
Letters of Credit
3.1.
Letters
of Credit
(a) Subject
to and upon the terms and conditions herein set forth, at any time and from
time
to time after the Closing Date and prior to the L/C Maturity Date, the Letter
of
Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit
Lenders set forth in this
Section 3
, to issue upon the request of the
Parent Borrower and for the direct or indirect benefit of the Borrowers and
the
Restricted Subsidiaries, a letter of credit or letters of credit (the
“
Letters of Credit
” and each, a “
Letter of
Credit
”) in such form and with such Issuer Documents as may be approved
by the Letter of Credit Issuer in its reasonable discretion;
provided
that the Parent Borrower shall be a co-applicant, and jointly and severally
liable with respect to each Letter of Credit issued for the account of a
Restricted Subsidiary that is not a Borrower.
(b)
Notwithstanding the foregoing,
(i) no Letter of Credit shall be issued the Stated Amount of which, when
added
to the Letters of Credit Outstanding at such time, would exceed the Letter
of
Credit Commitment then in effect; (ii) no Letter of Credit shall be issued
the Stated Amount of which would cause the aggregate amount of the Tranche
A
Lenders’ Revolving Credit Exposures at such time to exceed the lesser of the
Tranche A Borrowing Base and the Tranche A Commitment then in effect; (iii)
each
Letter of Credit shall have an expiration date occurring no later than one
year
after the date of issuance thereof, unless otherwise agreed upon by the
Administrative Agent and the Letter of Credit Issuer,
provided
that in no
event shall such expiration date occur later than the L/C Maturity Date;
(iv) each Letter of Credit shall be denominated in Dollars; (v) no Letter
of Credit shall be issued if it would be illegal under any applicable law
for
the beneficiary of the Letter of Credit to have a Letter of Credit issued
in its
favor; and (vi) no Letter of Credit shall be issued by a Letter of Credit
Issuer after it has received a written notice from any Credit Party or the
Administrative Agent or the Required Lenders stating that a Default or Event
of
Default has occurred and is continuing until such time as the Letter of Credit
Issuer shall have received a written notice of (x) rescission of such
notice from the party or parties originally delivering such notice or
(y) the waiver of such Default or Event of Default in accordance with the
provisions of
Section 13.1
.
(c)
Upon at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent and the
Letter
of Credit Issuer (which notice the Administrative Agent shall promptly transmit
to each of the applicable Lenders), the Parent Borrower on behalf of the
Borrowers shall have the right, on any day, permanently to terminate or reduce
the Letter of Credit Commitment in whole or in part,
provided
that, after
giving effect to such termination or reduction, the Letters of Credit
Outstanding shall not exceed the Letter of Credit Commitment.
(d)
The parties hereto agree that the Existing Letters of
Credit shall be deemed to be Letters of Credit for all purposes under this
Agreement, without any further action by the Parent Borrower, the Letter
of
Credit Issuer or any other Person.
(e)
If any L/C Obligation remains upon the termination
of the Revolving Credit Commitments, to the extent (i) the lesser of (x)
the
Tranche A-1 Commitments and (y) the Applicable Borrowing Base exceeds (ii)
the
aggregate principal amount of all outstanding Tranche A-1 Loans (the “
Excess
Amount
”) upon such termination of the Revolving Credit Commitments, the
Tranche A Lenders shall be deemed to have sold to each Tranche A-1 Lender,
and
each Tranche A-1 Lender shall be deemed to have irrevocably and unconditionally
so purchased from the Tranche A Lenders, without recourse or warranty, an
undivided interest and participation (to the extent of such Tranche A-1 Lender’s
Applicable Percentage of the lesser of such Excess Amount and such undivided
interest and participation of each Tranche A Lender in such L/C Obligations)
in
each drawing thereunder and the obligations of the Borrowers under this
Agreement and the other Loan Documents with respect thereto and such
Tranche A-1 Lenders shall be L/C Participants for all purposes
hereunder.
3.2.
Letter
of Credit Requests
(a) Whenever
any Borrower desires that a Letter of Credit be issued for its account, the
Parent Borrower on behalf of such Borrower shall give the Administrative
Agent
and
the
Letter of Credit Issuer a Letter of Credit Request by no later than
11:00 a.m. (New York City time) at least two (or such lesser number as may
be agreed upon by the Administrative Agent and the Letter of Credit Issuer)
Business Days prior to the proposed date of issuance. Each notice
shall be executed by the Parent Borrower and shall be in the form of
Exhibit G
or such other form (including by electronic or fax
transmission) as agreed between the Parent Borrower, the Administrative
Agent
and the Letter of Credit Issuer (each a “
Letter of Credit
Request
”). No Letter of Credit Issuer shall issue any
Letters of Credit unless such Letter of Credit Issuer shall have received
notice
from the Administrative Agent that the conditions to such issuance have
been
met, which notice shall be deemed given (x) if the Letter of Credit Issuer
has
not received notice from the Administrative Agent that the conditions to
such
issuance have been met within two Business Days after the date of the applicable
Letter of Credit Request or (y) if the aggregate amount of Letters of Credit
Outstanding issued by such Letter of Credit Issuer then outstanding does
not
exceed the amount theretofore agreed to by the Parent Borrower or such
Borrower,
as applicable, the Administrative Agent and such Letter of Credit Issuer,
and
the Administrative Agent has not otherwise notified such Letter of Credit
Issuer
that it may no longer rely on this
subclause (y)
.
(b) If
the Parent Borrower on behalf of any Borrower so requests in any applicable
Letter of Credit Request, the Letter of Credit Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “
Auto-Extension Letter of
Credit
”);
provided
that any such Auto-Extension Letter of Credit
must permit the Letter of Credit Issuer to prevent any such extension at
least
once in each twelve-month period (commencing with the date of issuance of
such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “
Non-Extension Notice Date
”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the Letter of Credit Issuer, the
Parent Borrower shall not be required to make a specific request to the Letter
of Credit Issuer for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the Letter of Credit Issuer to permit the extension
of
such Letter of Credit at any time to an expiry date not later than the L/C
Maturity Date;
provided
,
however
, that the Letter of Credit Issuer
shall not permit any such extension if (A) the Letter of Credit Issuer has
determined that it would not be permitted, or would have no obligation, at
such
time to issue such Letter of Credit in its revised form (as extended) under
the
terms hereof (by reason of the provisions of
clause (b)
of
Section
3.1
or otherwise), or (B) it has received notice (which may be by telephone
or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Parent Borrower that one or more of the applicable
conditions specified in
Sections 6
and
7
are not then satisfied,
and in each such case directing the Letter of Credit Issuer not to permit
such
extension.
(c)
Each Letter of Credit Issuer (other than CIT or any of
its Affiliates) shall, at least once each week, provide the Administrative
Agent
a list of all Letters of Credit (including any Existing Letter of Credit)
issued
by it that are outstanding at such time;
provided
, that upon written
request from the Administrative Agent, such Letter of Credit Issuer shall
thereafter notify the Administrative Agent in writing on each Business Day
of
all Letters of Credit issued on the prior Business Day by such Letter of
Credit
Issuer.
(d)
The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the applicable Borrower that
the
Letter of Credit may be issued in accordance with, and will not violate the
requirements of,
Section 3.1(b)
.
3.3.
Letter
of Credit Participations
.
(a) Immediately
upon the issuance by the Letter of Credit Issuer of any Letter of Credit
(and on
the Closing Date in respect of Existing Letters of Credit), the Letter of
Credit
Issuer shall be deemed to have sold and transferred to each Tranche A Lender
(each such Tranche A Lender, in its capacity under this
Section 3.3
,
together with each Tranche A-1 Lender under
Section 3.1(e)
, an
“
L/C Participant
”), and each such L/C Participant shall be
deemed irrevocably and unconditionally to have purchased and received from
the
Letter of Credit Issuer, without recourse or warranty, an undivided interest
and
participation (each an “
L/C Participation
”), to the extent of
such L/C Participant’s Tranche A Commitment Percentage (or Tranche A-1
Commitment Percentage, as applicable, with respect to any Excess Amount),
in
each Letter of Credit, each substitute therefor, each drawing made thereunder
and the obligations of the Borrowers under this Agreement with respect thereto,
and any security therefor or guaranty pertaining thereto.
(b)
In determining whether to pay under any
Letter of Credit, the relevant Letter of Credit Issuer shall have no obligation
relative to the L/C Participants other than to confirm that (i) any documents
required to be delivered under such Letter of Credit have been delivered,
(ii)
the Letter of Credit Issuer has examined the documents with reasonable care
and
(iii) the documents appear to comply on their face with the requirements
of such
Letter of Credit. Any action taken or omitted to be taken by the
relevant Letter of Credit Issuer under or in connection with any Letter of
Credit issued by it, if taken or omitted in the absence of gross negligence
or
willful misconduct, shall not create for the Letter of Credit Issuer any
resulting liability.
(c) In
the event that the Letter of Credit Issuer makes any payment under any Letter
of
Credit issued by it and the Borrowers shall not have repaid such amount in
full
to the respective Letter of Credit Issuer pursuant to
Section 3.4(a)
, the
Letter of Credit Issuer shall promptly notify the Administrative Agent and
each
L/C Participant of such failure, and each such L/C Participant shall promptly
and unconditionally pay to the Administrative Agent for the account of the
Letter of Credit Issuer, the amount of such L/C Participant’s Tranche A
Commitment Percentage (or Tranche A-1 Commitment Percentage, as applicable,
with respect to any Excess Amount) of such unreimbursed payment in Dollars
and
in immediately available funds;
provided
,
however
, that no L/C
Participant shall be obligated to pay to the Administrative Agent for the
account of the Letter of Credit Issuer its Tranche A Commitment Percentage
(or Tranche A-1 Commitment Percentage, as applicable, with respect to any
Excess Amount) of such unreimbursed amount arising from any wrongful payment
made by the Letter of Credit Issuer under any such Letter of Credit as a
result
of acts or omissions constituting willful misconduct or gross negligence
on the
part of the Letter of Credit Issuer. Each L/C Participant shall make
available to the Administrative Agent for the account of the Letter of Credit
Issuer such L/C Participant’s Tranche A Commitment Percentage (or
Tranche A-1 Commitment Percentage, as applicable, with respect to any
Excess Amount) of the amount of such payment no later than 12:00 Noon (New
York
City time) on the first Business Day after the date notified
by
the
Letter of Credit Issuer in immediately available funds. If and to the
extent such L/C Participant shall not have so made its Tranche A Commitment
Percentage (or Tranche A-1 Commitment Percentage, as applicable, with
respect to any Excess Amount) of the amount of such payment available to
the
Administrative Agent for the account of the Letter of Credit Issuer, such
L/C
Participant agrees to pay to the Administrative Agent for the account of
the
Letter of Credit Issuer, forthwith on demand, such amount, together with
interest thereon for each day from such date until the date such amount
is paid
to the Administrative Agent for the account of the Letter of Credit Issuer
at a
rate
per annum
equal to the Overnight Rate from time to time then in
effect, plus any administrative, processing or similar fees customarily
charged
by the Letter of Credit Issuer in connection with the foregoing. The
failure of any L/C Participant to make available to the Administrative
Agent for
the account of the Letter of Credit Issuer its Tranche A Commitment
Percentage (or Tranche A-1 Commitment Percentage, as applicable, with
respect to any Excess Amount) of any payment under any Letter of Credit
shall
not relieve any other L/C Participant of its obligation hereunder to make
available to the Administrative Agent for the account of the Letter of
Credit
Issuer its Tranche A Commitment Percentage (or Tranche A-1 Commitment
Percentage, as applicable, with respect to any Excess Amount) of any payment
under such Letter of Credit on the date required, as specified above, but
no L/C
Participant shall be responsible for the failure of any other L/C Participant
to
make available to the Administrative Agent such other L/C Participant’s Tranche
A Commitment Percentage (or Tranche A-1 Commitment Percentage, as
applicable, with respect to any Excess Amount) Commitment Percentage of
any such
payment.
(d) Whenever
the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received
for
the account of the Letter of Credit Issuer any payments from the L/C
Participants pursuant to
clause (c)
above, the Letter of Credit Issuer
shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its Tranche A Commitment
Percentage (or Tranche A-1 Commitment Percentage, as applicable, with
respect to any Excess Amount) of such reimbursement obligation, in Dollars
and
in immediately available funds, an amount equal to such L/C Participant’s share
(based upon the proportionate aggregate amount originally funded by such
L/C
Participant to the aggregate amount funded by all L/C Participants) of the
principal amount so paid in respect of such reimbursement obligation and
interest thereon accruing after the purchase of the respective L/C
Participations at the Overnight Rate.
(e) The
obligations of the L/C Participants to make payments to the Administrative
Agent
for the account of a Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including under any of the following circumstances:
(i) any lack of validity or
enforceability of this Agreement or any of the other Credit
Documents;
(ii) the
existence of any claim, set-off, defense or other right that a Borrower may
have
at any time against a beneficiary named in a Letter of Credit, any transferee
of
any
Letter of Credit (or any Person for whom any such transferee may be acting),
the
Administrative Agent, the Letter of Credit Issuer, any Lender or other
Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including
any
underlying transaction between a Borrower and the beneficiary named in
any such
Letter of Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any
statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance
of any
of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Tranche A Commitment Percentage (or Tranche A11 Commitment Percentage,
as applicable, with respect to any Excess Amount) of any unreimbursed amount
arising from any wrongful payment made by the Letter of Credit Issuer under
a
Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit
Issuer.
3.4.
Agreement
to Repay Letter of Credit Drawings
(a) The
Borrowers hereby agree to reimburse the Letter of Credit Issuer, by making
payment in Dollars to the Administrative Agent in immediately available funds,
for any payment or disbursement made by the Letter of Credit Issuer under
any
Letter of Credit (each such amount so paid until reimbursed, an “
Unpaid
Drawing
”) no later than the date that is one Business Day after the
date on which the Parent Borrower receives notice of such payment or
disbursement (the “
Reimbursement Date
”), with interest on the
amount so paid or disbursed by the Letter of Credit Issuer, to the extent
not
reimbursed prior to 5:00 p.m. (New York City time) on the Reimbursement
Date, from the Reimbursement Date to the date the Letter of Credit Issuer
is
reimbursed therefor at a rate
per annum
that shall at all times be the
Applicable Margin plus the ABR as in effect from time to time,
provided
that, notwithstanding anything contained in this Agreement to the contrary,
(i) unless the Parent Borrower on behalf of the Borrowers shall have
notified the Administrative Agent and the relevant Letter of Credit Issuer
prior
to 10:00 a.m. (New York City time) on the Reimbursement Date that the
Parent Borrower intends to reimburse the relevant Letter of Credit Issuer
for
the amount of such drawing with funds other than the proceeds of Revolving
Loans, the Parent Borrower on behalf of the Borrowers shall be deemed to
have
given a Notice of Borrowing requesting that, with respect to Letters of Credit,
the Lenders with Revolving Credit Commitments make Revolving Credit Loans
(which
shall be ABR Loans) on the Reimbursement Date in the amount of such drawing
and
(ii) the Administrative Agent shall promptly notify each Lender of such
drawing and the amount of its Revolving Credit Loan to be made in respect
thereof, and each L/C Participant shall be irrevocably obligated to make
a
Revolving Credit Loan to the Parent Borrower on behalf of the Borrowers in
the
manner deemed to have been requested in the amount of its Revolving Credit
Commitment Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New
York City time)
on
such
Reimbursement Date by making the amount of such Revolving Credit Loan available
to the Administrative Agent. Such Revolving Credit Loans shall be
made without regard to the Minimum Borrowing Amount. Such Revolving
Credit Loans shall be Tranche A-1 Loans unless the Tranche A-1
Commitment has been fully drawn. The Administrative Agent shall use
the proceeds of such Revolving Credit Loans solely for purpose of reimbursing
the Letter of Credit Issuer for the related Unpaid Drawing. In the
event that the Parent Borrower fails to Cash Collateralize any Letter of
Credit
that is outstanding on the Maturity Date, the full amount of the Letters
of
Credit Outstanding in respect of such Letter of Credit shall be deemed
to be an
Unpaid Drawing subject to the provisions of this
Section 3.4
except that
the Letter of Credit Issuer shall hold the proceeds received from the Lenders
as
contemplated above as cash collateral for such Letter of Credit to reimburse
any
Drawing under such Letter of Credit and shall use such proceeds first,
to
reimburse itself for any Drawings made in respect of such Letter of Credit
following the L/C Maturity Date, second, to the extent such Letter of Credit
expires or is returned undrawn while any such cash collateral remains,
to the
repayment of obligations in respect of any Revolving Credit Loans that
have not
paid at such time and third, to the Parent Borrower or as otherwise directed
by
a court of competent jurisdiction. Nothing in this
Section
3.4(a)
shall affect the Parent Borrower’s obligation to repay all
outstanding Revolving Credit Loans when due in accordance with the terms
of this
Agreement.
(b) The
obligations of the Borrowers under this
Section 3.4
to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and
all
circumstances and irrespective of any set-off, counterclaim or defense to
payment that any Borrower or any other Person may have or have had against
the
Letter of Credit Issuer, the Administrative Agent or any Lender (including
in
its capacity as an L/C Participant), including any defense based upon the
failure of any drawing under a Letter of Credit (each a
“
Drawing
”) to conform to the terms of the Letter of Credit or
any non-application or misapplication by the beneficiary of the proceeds
of such
Drawing,
provided
that the Borrowers shall not be obligated to reimburse
the Letter of Credit Issuer for any wrongful payment made by the Letter of
Credit Issuer under the Letter of Credit issued by it as a result of acts
or
omissions constituting willful misconduct or gross negligence on the part
of the
Letter of Credit Issuer.
3.5.
Increased
Costs.
If
after
the date hereof, the adoption of any applicable law, rule or regulation,
or any
change therein, or any change in the interpretation or administration thereof
by
any Governmental Authority, central bank or comparable agency charged with
the
interpretation or administration thereof, or actual compliance by the Letter
of
Credit Issuer or any L/C Participant with any request or directive made or
adopted after the date hereof (whether or not having the force of law), by
any
such authority, central bank or comparable agency shall either (a) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by the Letter of Credit Issuer,
or
any L/C Participant’s L/C Participation therein, or (b) impose on the Letter of
Credit Issuer or any L/C Participant any other conditions affecting its
obligations under this Agreement in respect of Letters of Credit or L/C
Participations therein or any Letter of Credit or such L/C Participant’s L/C
Participation therein, and the result of any of the foregoing is to increase
the
cost to the Letter of Credit Issuer or such L/C Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount
of
any sum received or receivable by the Letter of Credit Issuer or such L/C
Participant hereunder (other than any such increase or reduction
attributable
to (i) taxes indemnified under
Section 5.4
, (ii) net income taxes and
franchise and excise taxes (imposed in lieu of net income taxes) imposed
on any
Agent or Lender and, to the extent not duplicative, any Taxes imposed on
any
Agent or Lender where that Tax is imposed upon or calculated by reference
to the
net income received or receivable (but not any sum deemed to be received
or
receivable) by such Agent or Lender or (iii) Taxes included under
clauses
(c)
and
(d)
of the definition of “Excluded Taxes”) in respect of
Letters of Credit or L/C Participations therein, then, promptly after receipt
of
written demand to the Parent Borrower by the Letter of Credit Issuer or
such L/C
Participant, as the case may be (a copy of which notice shall be sent by
the
Letter of Credit Issuer or such L/C Participant to the Administrative Agent),
the Borrowers shall pay to the Letter of Credit Issuer or such L/C Participant
such additional amount or amounts as will compensate the Letter of Credit
Issuer
or such L/C Participant for such increased cost or reduction, it being
understood and agreed, however, that the Letter of Credit Issuer or an
L/C
Participant shall not be entitled to such compensation as a result of such
Person’s compliance with, or pursuant to any request or directive to comply
with, any such law, rule or regulation as in effect on the date
hereof. A certificate submitted to the Parent Borrower by the
relevant Letter of Credit Issuer or an L/C Participant, as the case may
be (a
copy of which certificate shall be sent by the Letter of Credit Issuer
or such
L/C Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the determination of such additional amount or amounts
necessary to compensate the Letter of Credit Issuer or such L/C Participant
as
aforesaid shall be conclusive and binding on the Borrowers absent clearly
demonstrable error.
3.6.
New
or Successor Letter of Credit Issuer
.
(a) The
Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 30 days’
prior written notice to the Administrative Agent, the Lenders and the Parent
Borrower. The Parent Borrower may add Letter of Credit Issuers at any
time upon notice to the Administrative Agent. If the Letter of Credit
Issuer shall resign or be replaced, or if the Parent Borrower shall decide
to
add a new Letter of Credit Issuer under this Agreement, then the Parent Borrower
may appoint from among the Lenders a successor issuer of Letters of Credit
or a
new Letter of Credit Issuer, as the case may be, or, with the consent of
the
Administrative Agent (such consent not to be unreasonably withheld), another
successor or new issuer of Letters of Credit, whereupon such successor issuer
shall succeed to the rights, powers and duties of the replaced or resigning
Letter of Credit Issuer under this Agreement and the other Credit Documents,
or
such new issuer of Letters of Credit shall be granted the rights, powers
and
duties of a Letter of Credit Issuer hereunder, and the term “Letter of Credit
Issuer” shall mean such successor or such new issuer of Letters of Credit
effective upon such appointment. The acceptance of any appointment as
a Letter of Credit Issuer hereunder whether as a successor issuer or new
issuer
of Letters of Credit in accordance with this Agreement, shall be evidenced
by an
agreement entered into by such new or successor issuer of Letters of Credit,
in
a form satisfactory to the Parent Borrower and the Administrative Agent and,
from and after the effective date of such agreement, such new or successor
issuer of Letters of Credit shall become a “Letter of Credit Issuer”
hereunder. After the resignation or replacement of a Letter of Credit
Issuer hereunder, the resigning or replaced Letter of Credit Issuer shall
remain
a party hereto and shall continue to have all the rights and obligations
of a
Letter of Credit Issuer under this Agreement and the other Credit Documents
with
respect to Letters of Credit issued by it prior to such resignation or
replacement, but shall not be required to issue additional Letters of
Credit.
In
connection with any resignation or replacement pursuant to this
clause
(a)
(but, in case of any such resignation, only to the extent that a
successor issuer of Letters of Credit shall have been appointed), either
(i) the
Parent Borrower, the resigning or replaced Letter of Credit Issuer and
the
successor issuer of Letters of Credit shall arrange to have any outstanding
Letters of Credit issued by the resigning or replaced Letter of Credit
Issuer
replaced with Letters of Credit issued by the successor issuer of Letters
of
Credit or (ii) the Parent Borrower shall cause the successor issuer of
Letters
of Credit, if such successor issuer is reasonably satisfactory to the replaced
or resigning Letter of Credit Issuer, to issue “back-stop” Letters of Credit
naming the resigning or replaced Letter of Credit Issuer as beneficiary
for each
outstanding Letter of Credit issued by the resigning or replaced Letter
of
Credit Issuer, which new Letters of Credit shall have a face amount equal
to the
Letters of Credit being back-stopped and the sole requirement for drawing
on
such new Letters of Credit shall be a drawing on the corresponding back-stopped
Letters of Credit. After any resigning or replaced Letter of Credit
Issuer’s resignation or replacement as Letter of Credit Issuer, the provisions
of this Agreement relating to a Letter of Credit Issuer shall inure to
its
benefit as to any actions taken or omitted to be taken by it (A) while
it was a
Letter of Credit Issuer under this Agreement or (B) at any time with respect
to
Letters of Credit issued by such Letter of Credit Issuer.
(b) To
the extent that there are, at the time of any resignation or replacement
as set
forth in
clause (a)
above, any outstanding Letters of Credit, nothing
herein shall be deemed to impact or impair any rights and obligations of
any of
the parties hereto with respect to such outstanding Letters of Credit
(including, without limitation, any obligations related to the payment of
Fees
or the reimbursement or funding of amounts drawn), except that the Parent
Borrower, the resigning or replaced Letter of Credit Issuer and the successor
issuer of Letters of Credit shall have the obligations regarding outstanding
Letters of Credit described in
clause (a)
above.
3.7.
Role
of Letter of Credit Issuer.
Each
Lender and the Parent Borrower agree that, in paying any drawing under a
Letter
of Credit, the Letter of Credit Issuer shall not have any responsibility
to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as
to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. None of the Letter of
Credit Issuer, the Administrative Agent, any of their respective affiliates
nor
any correspondent, participant or assignee of the Letter of Credit Issuer
shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Required Lenders;
(ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit
or
Issuer Document. The Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter
of Credit;
provided
that this assumption is not intended to, and shall
not, preclude the Borrowers’ pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. None of the Letter of Credit Issuer, the Administrative
Agent, any of their respective affiliates nor any correspondent, participant
or
assignee of the Letter of Credit Issuer shall be liable or responsible for
any
of the matters described in
Section 3.3(e)
;
provided
that anything
in such Section to the contrary notwithstanding, the Borrowers may have a
claim
against the Letter of Credit Issuer, and the Letter of Credit Issuer may
be
liable to the Borrowers, to the extent, but only to the extent, of any
direct,
as opposed to consequential or exemplary, damages suffered by any Borrower
which
any Borrower proves were caused by the Letter of Credit Issuer’s willful
misconduct or gross negligence or the Letter of Credit Issuer’s willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
the
terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the Letter of Credit Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary,
and the
Letter of Credit Issuer shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or
assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in
whole or in part, which may prove to be invalid or ineffective for any
reason.
3.8.
Cash
Collateral
.
(a) Upon
the request of the Required Lenders if, as of the L/C Maturity Date, there
are any Letters of Credit Outstanding, the Parent Borrower, on behalf of
the
Borrowers, shall immediately Cash Collateralize the then Letters of Credit
Outstanding.
(b) If
any Event of Default shall occur and be continuing, the Revolving Credit
Lenders
with Letter of Credit Exposure representing greater than 50% of the total
Letter
of Credit Exposure may require that the L/C Obligations be Cash
Collateralized.
(c) For
purposes of this
Section 3.8,
and
Sections 5.2(b)
, and
5.2(c)
“
Cash Collateralize
” means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the Letter
of
Credit Issuer and the Lenders, as collateral for the L/C Obligations, cash
or
deposit account balances in an amount equal to the amount of the Letters
of
Credit Outstanding required to be Cash Collateralized pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent
and
the Letter of Credit Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding
meanings. The Parent Borrower hereby grants to the Administrative
Agent, for the benefit of the Letter of Credit Issuer and the L/C Participants,
a security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Such cash Collateral shall be
maintained in blocked, interest bearing deposit accounts established by and
in
the name of the Administrative Agent.
3.9.
Applicability
of ISP and UCP
.
Unless
otherwise expressly agreed by the Letter of Credit Issuer and the Parent
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published
by the
International Chamber of Commerce at the time of issuance, shall apply to
each
commercial Letter of Credit.
3.10
Conflict
with Issuer Documents.
In
the
event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
3.11.
Letters
of Credit Issued for Restricted Subsidiaries.
Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of
any
obligations of, or is for the
account
of, a Restricted Subsidiary that is not a Borrower, the Parent Borrower
shall be
obligated to reimburse the Letter of Credit Issuer hereunder for any and
all
drawings under such Letter of Credit. The Parent Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of
Restricted Subsidiaries that are not Borrowers inures to the benefit of
the
Parent Borrower, and that the Parent Borrower’s business derives substantial
benefits from the businesses of such Restricted Subsidiaries.
SECTION
4.
Fees;
Commitments
4.1.
Fees
.
(a) The
Borrowers agree to pay to the Administrative Agent in Dollars, for the account
of each Tranche A Lender and each Tranche A-1 Lender (in each case
pro
rata
according to the respective Revolving Credit Commitments of all such
Lenders), a commitment fee (the “
Commitment Fee
”) for each day
from the Closing Date to the Revolving Credit Termination Date. Each
Commitment Fee shall be payable by the Parent Borrower on behalf of the
Borrowers (x) quarterly in arrears on the first Business Day of each
February, May, August and November (for the three-month period (or portion
thereof) ended on such day for which no payment has been received) and
(y) on the Revolving Credit Termination Date (for the period ended on such
date for which no payment has been received pursuant to
clause (x)
above), and shall be computed for each day during such period at a rate
per
annum
equal to the applicable Commitment Fee Rate in effect on such day on
the applicable portion of the Available Commitment in effect on such
day.
(b) The
Borrowers agree to pay to the Administrative Agent in Dollars for the account
of
the Lenders
pro rata
on the basis of their respective Letter of Credit
Exposure, a fee in respect of each Letter of Credit (the “
Letter of
Credit Fee
”), for the period from the date of issuance of such Letter
of Credit to the termination date of such Letter of Credit computed at the
per annum
rate for each day equal to (i) in the case of a Standby
Letter of Credit, the Applicable Margin for LIBOR Loans minus 0.125%
per
annum
and (ii) in the case if a Commercial Letter of Credit, 50% of the
Applicable Margin for LIBOR Loans, in each case on the average daily Stated
Amount of such Letter of Credit (provided that in no event shall the payment
of
Letter of Credit Fees in excess of the amounts payable pursuant to the last
two
sentences of this
subclause (b)
be required). Except as
provided below, such Letter of Credit Fees shall be due and payable
(x) quarterly in arrears on the first Business Day of each February, May,
August and November and (y) on the date upon which the Total Revolving
Credit Commitment terminates and the Letters of Credit Outstanding shall
have
been reduced to zero.
(c) The
Borrowers agree to pay to each Letter of Credit Issuer a fee in respect of
each
Letter of Credit issued by it (the “
Fronting Fee
”), for the
period from the date of issuance of such Letter of Credit to the termination
date of such Letter of Credit, computed at the rate for each day equal to
0.125%
per annum
on the average daily Stated Amount of such Letter of Credit
(or at such other rate per annum as agreed in writing between the Parent
Borrower and the Letter of Credit Issuer). Such Fronting Fees shall
be due and payable by the Parent Borrower on behalf of the Borrowers
(x) quarterly in arrears on the first Business Day of each February, May,
August and November and (y) on the date upon which the Total Revolving
Credit
Commitment terminates and the Letters of Credit Outstanding shall have
been
reduced to zero.
(d) The
Parent Borrower on behalf of the Borrowers agrees to pay directly to the
Letter
of Credit Issuer upon each issuance of, drawing under, and/or amendment of,
a
Letter of Credit issued by it such amount as the Letter of Credit Issuer
and the
Parent Borrower shall have agreed upon for issuances of, drawings under or
amendments of, letters of credit issued by it.
(e) Notwithstanding
the foregoing, the Borrowers shall not be obligated to pay any amounts to
any
Defaulting Lender pursuant to this
Section 4.1
.
4.2.
Voluntary
Reduction of Revolving Credit Commitments
.
(a) Subject
to the provisions of
clause (c)
below, upon at least five Business Days’
prior written notice (or telephonic notice promptly confirmed in
writing) to the
Administrative Agent at the Administrative Agent’s Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Parent
Borrower shall have the right, without premium or penalty, on any day,
permanently to terminate or reduce the Tranche A Commitments and/or the Tranche
A-1 Commitments in whole or in part,
provided
that (a) any such
reduction shall apply proportionately and permanently to reduce the Tranche
A
Commitments and/or the Tranche A-1 Commitments, as applicable, of each of
the
Lenders, (b) any partial reduction pursuant to this
Section 4.2
shall be in the amount of at least $50,000,000 and in multiples of $50,000,000
in excess thereof and (c) after giving effect to such termination or
reduction and to any prepayments of the Loans made on the date thereof in
accordance with this Agreement (including pursuant to
Section 5.2(b)(i)
),
the aggregate amount of the Lenders’ Revolving Credit Exposures shall not exceed
the lesser of the Total Revolving Credit Commitment and the Applicable Borrowing
Base then in effect.
(b) Subject
to the provisions of
clause (c)
below, the Borrowers may at any time
terminate all of the Tranche A Commitments and/or Tranche A-1 Commitments
upon
(i) the payment in full of all outstanding Tranche A Loans and/or Tranche
A-1 Loans, as applicable, together with accrued and unpaid interest thereon,
(ii) in the case of the Tranche A Commitments, the cancellation and return
of
all outstanding Letters of Credit (or alternatively, with respect to each
such
Letter of Credit, the furnishing to the Administrative Agent of a cash deposit
as required by
Section 5.2
) (iii) the payment in full of the accrued and
unpaid Fees, including any payments required under
Section 2.11
, as
applicable, and (iv) the payment in full of all reimbursable expenses and
other
Obligations together with accrued and unpaid interest thereon, as
applicable.
(c) The
Parent Borrower may, at any time, reduce the Tranche A Commitments as provided
above. Notwithstanding anything to the contrary contained herein,
except as provided in the following proviso, the Parent Borrower may, at
any
time, reduce the Tranche A-1 Commitments;
provided
that the
Tranche A-1 Commitments shall not be reduced or terminated if, at such
time, any Tranche A Loans are outstanding. In the event that all
of the Tranche A Commitments are terminated, the Borrowers shall
contemporaneously therewith terminate all Tranche A-1
Commitments.
4.3.
Mandatory
Termination of Commitments
.
(a) The
Revolving Credit Commitment shall terminate at 5:00 p.m. (New York City
time) on the Revolving Credit Termination Date.
(b) The
Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on
the Swingline Maturity Date.
SECTION
5.
Payments
5.1.
Voluntary
Prepayments.
The
Borrowers shall have the right to prepay Revolving Credit Loans and Swingline
Loans, in each case, without premium or penalty, in whole or in part from
time
to time on the following terms and conditions:
(a)
the
Parent Borrower, on behalf of the Borrowers, shall give the Administrative
Agent
at the Administrative Agent’s Office written notice (or telephonic notice
promptly confirmed in writing) of its intent to make such prepayment, the
amount
of such prepayment and (in the case of LIBOR Loans) the specific Borrowing(s)
being prepaid, which notice shall be given by the Parent Borrower, on behalf
of
the Borrowers, no later than 1:00 p.m. (New York City time) (i) in the case
of LIBOR Loans, three Business Days prior to, (ii) in the case of ABR Loans
(other than Swingline Loans and Protective Advances), on and (iii) in the
case
of Swingline Loans and Protective Advances, on, the date of such prepayment
and
shall promptly be transmitted by the Administrative Agent to each of the
Lenders
or the Swingline Lender, as the case may be;
(b)
each
partial prepayment of (i) LIBOR Loans shall be in a minimum amount of
$5,000,000 and in multiples of $1,000,000 in excess thereof, (ii) any ABR
Loans
(other than Swingline Loans) shall be in a minimum amount of $1,000,000 and
in
multiples of $500,000 in excess thereof and (iii) Swingline Loans shall be
in a
minimum amount of $500,000 and in multiples of $100,000 in excess thereof,
provided
that no partial prepayment of LIBOR Loans made pursuant to a
single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to
such
Borrowing to an amount less than the applicable Minimum Borrowing Amount
for
such LIBOR Loans and
(c)
any
prepayment of LIBOR Loans pursuant to this
Section 5.1
on any day other
than the last day of an Interest Period applicable thereto shall be subject
to
compliance by the Parent Borrower with the applicable provisions of
Section
2.11
.
At
the
Parent Borrower’s election in connection with any prepayment pursuant to this
Section 5.1
, such prepayment (a) shall not be applied to any Revolving
Credit Loans of a Defaulting Lender, and (b) shall be applied to the Class
or
Classes of Loans as the Parent Borrower may specify. Notwithstanding
the foregoing in this
Section 5.1
, only if all Tranche A Loans are repaid
in full may the Borrowers prepay amounts owed with respect to the Tranche
A-1
Loans;
provided
that any such prepayment shall not reduce or terminate
the Tranche A-1 Commitments.
5.2.
Mandatory
Prepayments
.
(a)
Prepayment
Events
. On each occasion that a Prepayment Event occurs, the
Borrowers shall, within seven Business Days after the occurrence of such
Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within seven
Business Days after the Deferred Net Cash Proceeds Payment Date), repay,
in
accordance with
clause (e)
below, the Revolving Credit Loans in an amount
equal to 100% of the Net Cash Proceeds from such Prepayment Event. If
the Stock or Stock Equivalents of any Credit Party is sold or any Credit
Party
is sold as a going concern on any date, the sale proceeds shall be allocated
as
follows: that portion of the sale proceeds equal to the aggregate
gross book value of Accounts (excluding any reserves) and Cost of Inventory
shall be allocated to the Collateral of the Credit Parties so sold and shall
be
deemed to be proceeds thereof and applied pursuant to the immediately preceding
sentence.
(b)
Repayment
of Revolving Credit Loans
. (i) If on any date the
aggregate amount of the Lenders’ Revolving Credit Exposures (collectively, the
“
Aggregate Revolving Credit Outstandings
”) for any reason
exceeds 100% of the Total Revolving Credit Commitment then in effect, the
Borrowers shall forthwith repay on such date the principal amount of any
Protective Advances and after all Protective Advances have been paid in full,
Swingline Loans and, after all Swingline Loans have been paid in full, the
Tranche A Loans in an amount necessary to eliminate such deficiency and,
if,
after giving effect to the prepayment in full of all outstanding Tranche
A Loans
such deficiency has not been eliminated, prepay the Tranche A-1 Loans in
an
amount necessary to eliminate such deficiency. If, after giving
effect to the prepayment of all outstanding Protective Advances, Swingline
Loans, Tranche A Loans and Tranche A-1 Loans, the Aggregate Revolving Credit
Outstandings exceed the Total Revolving Credit Commitment then in effect,
the
Borrowers shall Cash Collateralize the L/C Obligations to the extent of such
excess.
(ii) Except
for Protective Advances, if on any date the Aggregate Revolving Credit
Outstandings for any reason exceed 100% of the Applicable Borrowing Base
then in
effect, the Borrowers shall forthwith repay on such date the principal amount
of
Swingline Loans and, after all Swingline Loans have been paid in full, Revolving
Credit Loans in an amount equal to such excess. If, after giving
effect to the prepayment of all outstanding Swingline Loans and Revolving
Credit
Loans, the Aggregate Revolving Credit Outstandings exceed the Applicable
Borrowing Base then in effect, the Borrowers shall Cash Collateralize the
L/C
Obligations to the extent of such excess. All such payments made in
respect of outstanding Loans shall be applied first to Tranche A Loans and
after
prepayment in full thereof, to Tranche A-1 Loans.
(c)
Application
during Cash Dominion Event.
At all times following the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
and after the occurrence and during the continuation of a Cash Dominion Event
(other than a Cash Dominion Event that constitutes an Event of Default) and
notification thereof by the Administrative Agent to the Borrower (subject
to the
provisions of the Security Agreement and the Intercreditor Agreement), on
each
Business Day, at or before 1:00 p.m. (New York City time), the Administrative
Agent shall apply all immediately available funds credited to the Collection
Account, first to pay any fees or expense reimbursements then due to the
Administrative Agent, the Letter of Credit Issuer and the Lenders (other
than in
connection with Secured Cash Management Agreements or Secured Hedge Agreements),
pro rata
, second to pay interest due
and
payable in respect of any Loans (including Swingline Loans and Protective
Advances) that may be outstanding,
pro rata
, third to prepay the
principal of any Protective Advances that may be outstanding,
pro rata
,
fourth to prepay the principal of the Tranche A Loans and Swingline Loans,
pro rata
, fifth, to prepay the principal of the Tranche A-1 Loans,
pro rata
, sixth, to Cash Collateralize outstanding Letter of
Credit
Exposure, seventh to pay any fees or expense reimbursements then due to
any Cash
Management Bank or Hedge Bank,
pro rata
,
and eighth to
pay any other Obligation.
(d) [Reserved].
(e)
Application
to Revolving Credit Loans
. With respect to each prepayment of
Revolving Credit Loans required by
Section 5.2(b)
, the Parent Borrower
may designate (i) the Types of Loans that are to be prepaid and the specific
Borrowing(s) being repaid and (ii) the Revolving Credit Loans to be prepaid,
provided
that (y) each prepayment of any Loans made pursuant to a
Borrowing shall be applied
pro rata
among such Loans; and
(z) notwithstanding the provisions of the preceding
clause (y)
, no
prepayment of Revolving Credit Loans shall be applied to the Revolving Credit
Loans of any Defaulting Lender unless otherwise agreed in writing by the
Parent
Borrower. In the absence of a designation by the Parent Borrower as
described in the preceding sentence, the Administrative Agent shall, subject
to
the above, make such designation in its reasonable discretion with a view,
but
no obligation, to minimize breakage costs owing under
Section 2.11
. Notwithstanding the foregoing, only if all
Tranche A Loans are repaid in full may the Administrative Agent apply amounts
received to the Tranche A-1 Loans.
(f)
LIBOR
Interest Periods
. In lieu of making any payment pursuant to this
Section 5.2
in respect of any LIBOR Loan other than on the last day
of the Interest Period therefor so long as no Event of Default shall have
occurred and be continuing, the Parent Borrower at its option may deposit,
on
behalf of the Borrowers, with the Administrative Agent an amount equal to
the
amount of the LIBOR Loan to be prepaid and such LIBOR Loan shall be repaid
on
the last day of the Interest Period therefor in the required
amount. Such deposit shall be held by the Administrative Agent in a
corporate time deposit account established on terms reasonably satisfactory
to
the Administrative Agent, earning interest at the then customary rate for
accounts of such type. Such deposit shall constitute cash collateral
for the LIBOR Loans to be so prepaid,
provided
that the Parent Borrower
may at any time direct that such deposit be applied to make the applicable
payment required pursuant to this
Section 5.2
.
(g)
Minimum
Amount
. No prepayment shall be required pursuant to
Section 5.2(a)
(i) in the case of any Disposition of Collateral
yielding Net Cash Proceeds of less than $100,000 in the aggregate and
(ii) unless and until the amount at any time of Net Cash Proceeds from
Prepayment Events required to be applied at or prior to such time pursuant
to
such Section and not yet applied at or prior to such time to prepay Revolving
Credit Loans pursuant to such Section exceeds $1,000,000 in the aggregate
for
all Prepayment Events (other than those that are under the threshold specified
in
subclause(i)
) in any one fiscal year, at which time all such Net Cash
Proceeds referred to in this
subclause (ii)
with respect to such fiscal
year shall be applied as a prepayment in accordance with this
Section
5.2
.
5.3.
Method
and Place of Payment
.
(a) Except
as otherwise specifically provided herein, all payments under this Agreement
shall be made by the Parent Borrower, on behalf of the Borrowers, without
set-off, counterclaim or deduction of any kind, to the Administrative Agent
for
the ratable account of the Lenders entitled thereto, the Letter of Credit
Issuer
or the Swingline Lender entitled thereto, as the case may be, not later than
2:00 p.m. (New York City time), in each case, on the date when due and
shall be made in immediately available funds at the Administrative Agent’s
Office or at such other office as the Administrative Agent shall specify
for
such purpose by notice to the Parent Borrower, it being understood that written
or facsimile notice by the Parent Borrower to the Administrative Agent to
make a
payment from the funds in the Parent Borrower’s account at the Administrative
Agent’s Office shall constitute the making of such payment to the extent of such
funds held in such account. All repayments or prepayments of any
Loans (whether of principal, interest or otherwise) hereunder and all other
payments under each Credit Document shall be made in Dollars. The
Administrative Agent will thereafter cause to be distributed on the same
day (if
payment was actually received by the Administrative Agent prior to
2:00 p.m. (New York City time) or, otherwise, on the next Business Day)
like funds relating to the payment of principal or interest or fees ratably
to
the Lenders entitled thereto.
(b) Any
payments under this Agreement that are made later than 2:00 p.m. (New York
City time) shall be deemed to have been made on the next succeeding Business
Day. Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in
effect
immediately prior to such extension.
5.4. Net
Payments
(a) Any
and all payments made by or on behalf of any Borrower or any Guarantor under
this Agreement or any other Credit Document shall be made free and clear
of, and
without deduction or withholding for or on account of, any Indemnified
Taxes
;
provided
that if any Borrower or any Guarantor shall be
required by applicable Requirements of Law to deduct or withhold any Indemnified
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions or withholdings applicable to additional sums payable
under this
Section 5.4
) the Administrative Agent, the Collateral
Agent or any Lender, as the case may be, receives an amount equal to the
sum it
would have received had no such deductions or withholdings been made,
(ii) the applicable Borrower or such Guarantor shall make such deductions
or withholdings and (iii) the applicable Borrower or such Guarantor shall
timely pay the full amount deducted or withheld to the relevant Governmental
Authority within the time allowed and in accordance with applicable Requirements
of Law. Whenever any Indemnified Taxes are payable by any Borrower or
such Guarantor, as promptly as possible thereafter, such Borrower or Guarantor
shall send to the Administrative Agent for its own account or for the account
of
such Lender, as the case may be, a certified copy of an original official
receipt (or other evidence acceptable to such Lender, acting reasonably)
received by such Borrower or such Guarantor showing payment
thereof.
(b) [Reserved].
(c) The
Borrowers shall timely pay and shall indemnify and hold harmless the
Administrative Agent, each Collateral Agent and each Lender (whether or not
such
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority) with regard to any Other Taxes.
(d) The
Borrowers shall indemnify and hold harmless the Administrative Agent, the
Collateral Agent and each Lender within fifteen Business Days after written
demand therefor, for the full amount of any Indemnified Taxes imposed on
the
Administrative Agent, the Collateral Agent or such Lender as the case may
be, on
or with respect to any payment by or on account of any obligation of any
Borrower or any Guarantor hereunder or under any other Credit Document
(including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this
Section 5.4
) and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes
were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth reasonable detail as to the
amount of such payment or liability delivered to the Parent Borrower by a
Lender, the Administrative Agent or the Collateral Agent (as applicable)
on its
own behalf or on behalf of a Lender shall be conclusive absent manifest
error.
(e)
Each Non-U.S. Lender with respect to any Revolving Credit Loan or any other
Loan
made to the Borrowers shall, to the extent it is legally entitled to do
so:
(i)
deliver to the Parent Borrower and the Administrative Agent, prior to the
date
on which the first payment to the Non-U.S. Lender is due hereunder, two copies
of (x) in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of “portfolio interest”, United States Internal Revenue
Service Form W-8BEN (together with a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of the Parent Borrower and is not a controlled foreign corporation
related to the Parent Borrower (within the meaning of Section 864(d)(4) of
the Code)), (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each
case properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax
on
payments by the Parent Borrower under this Agreement or (z) Internal Revenue
Service Form W-8IMY and all necessary attachments (including the forms described
in
clauses (x)
and
(y)
above, as required); and
(ii) deliver
to the Parent Borrower and the Administrative Agent two further copies of
any
such form or certification (or any applicable successor form) on or before
the
date that any such form or certification expires or becomes obsolete and
after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Parent Borrower;
unless
in
any such case any Change in Law has occurred prior to the date on which any
such
delivery would otherwise be required that renders any such form inapplicable
or
would prevent
such
Non-U.S. Lender from duly completing and delivering any such form with
respect
to it and such Non-U.S. Lender promptly so advises the Parent Borrower
and the
Administrative Agent. Each Person that shall become a Participant
pursuant to
Section 13.6
or a Lender pursuant to
Section 13.6
shall, upon the effectiveness of the related transfer, be required to provide
all the forms and statements required pursuant to this
Section 5.4(e)
,
provided
that in the case of a Participant such Participant shall
furnish
all such required forms and statements to the Lender from which the related
participation shall have been purchased.
(f)
[Reserved].
(g) [Reserved].
(h) If
any Lender, the Administrative Agent or the Collateral Agent, as applicable,
determines, in its sole discretion, that it had received and retained a refund
of an Indemnified Tax (including an Other Tax) for which a payment has been
made
by any Borrower pursuant to this Agreement, which refund in the good faith
judgment of such Lender, the Administrative Agent or the Collateral Agent,
as
the case may be, is attributable to such payment made by such Borrower, then
the
Lender, the Administrative Agent or the Collateral Agent, as the case may
be,
shall reimburse such Borrower for such amount (net of all out-of-pocket expenses
of such Lender, the Administrative Agent or the Collateral Agent, as the
case
may be, and without interest other than any interest received thereon from
the
relevant Governmental Authority with respect to such refund) as the Lender,
Administrative Agent or the Collateral Agent, as the case may be, determines
in
its sole discretion to be the proportion of the refund as will leave it,
after
such reimbursement, in no better or worse position (taking into account expenses
or any taxes imposed on the refund) than it would have been in if the payment
had not been required;
provided
that such Borrower, upon the request of
the Lender, the Administrative Agent or the Collateral Agent, agrees to repay
the amount paid over to such Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Lender, the
Administrative Agent or the Collateral Agent in the event the Lender, the
Administrative Agent or the Collateral Agent is required to repay such refund
to
such Governmental Authority. A Lender, the Administrative Agent or
the Collateral Agent shall claim any refund that it determines is available to
it, unless it concludes in its sole discretion that it would be adversely
affected by making such a claim. Neither the Lender, the
Administrative Agent nor the Collateral Agent shall be obliged to disclose
any
information regarding its tax affairs or computations to any Credit Party
in
connection with this
clause (h)
or any other provision of this
Section 5.4
.
(i) If
the Parent Borrower determines that a reasonable basis exists for contesting
a
Tax, each Lender or Agent, as the case may be, shall use reasonable efforts
to
cooperate with the Borrowers as the Parent Borrower may reasonably request
in
challenging such Tax. Subject to the provisions of
Section
2.12
, each Lender and Agent agree to use reasonable efforts to cooperate
with the Borrowers as the Parent Borrower may reasonably request to minimize
any
amount payable by any Borrower or any Guarantor pursuant to this
Section
5.4
. The Borrowers shall indemnify and hold each Lender and Agent
harmless against any out-of-pocket expenses incurred by such Person in
connection with any request made by the Parent Borrower pursuant to this
Section 5.4(i)
. Nothing in this
Section 5.4(i)
shall
obligate any
Lender
or
Agent to take any action that such Person, in its sole judgment, determines
may
result in a material detriment to such Person.
(j) Each
Lender and Agent with respect to the Revolving Credit Loan and any other
Loan
made to the Borrowers that is a United States person under Section 7701(a)(30)
of the Code (each, a “
U.S. Lender
”) shall deliver to the Parent
Borrower and the Administrative Agent two United States Internal Revenue
Service
Forms W-9 (or substitute or successor form), properly completed and duly
executed, certifying that such Lender or Agent is exempt from United States
backup withholding (i) on or prior to the Closing Date (or on or prior to
the
date it becomes a party to this Agreement), (ii) on or before the date that
such
form expires or becomes obsolete, (iii) after the occurrence of a change
in the
Agent’s or Lender’s circumstances requiring a change in the most recent form
previously delivered by it to the Parent Borrower and the Administrative
Agent,
and (iv) from time to time thereafter if reasonably requested by the Parent
Borrower or the Administrative Agent.
(k) Any
amount payable under this Agreement or any other Credit Document by any Borrower
or a Guarantor is exclusive of any value added tax or any other Tax of a
similar
nature which might be chargeable in connection with that amount. If
any such Tax is chargeable, such Borrower or such Guarantor, as the case
may be,
shall pay to the Administrative Agent, Collateral Agent or Lender, as the
case
may be, (in addition to and at the same time as paying that amount) an amount
equal to the amount of that Tax.
(l) Where
this Agreement or any other Credit Document requires any party to this Agreement
or any Credit Document, as the case may be, to reimburse the Administrative
Agent, the Collateral Agent or a Lender for any costs or expenses, that party
must also at the same time pay and indemnify the Administrative Agent,
Collateral Agent, or Lender, as the case may be against all value added tax
or
any other Tax of a similar nature incurred by the Administrative Agent, the
Collateral Agent or a Lender in respect of the costs and expenses to the
extent
that the Administrative Agent, Collateral Agent or Lender acting reasonably
determines that it is not entitled to a credit or repayment from the relevant
tax authority in respect of that tax.
(m) The
agreements in this
Section 5.4
shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
5.5.
Computations
of Interest and Fees
.
(a) Except
as provided in the next succeeding sentence, Interest on LIBOR Loans and
ABR
Loans shall be calculated on the basis of a 360-day year for the actual days
elapsed. Interest on ABR Loans in respect of which the rate of
interest is calculated on the basis of the Administrative Agent’s prime rate and
interest on overdue interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.
(b) Fees
and the average daily Stated Amount of Letters of Credit shall be calculated
on
the basis of a 360-day year for the actual days elapsed.
5.6.
Limit
on Rate of Interest
.
(a)
No Payment Shall Exceed Lawful Rate
. Notwithstanding any other
term of this Agreement, the Borrowers shall not be obligated to pay any interest
or other amounts under or in connection with this Agreement or otherwise
in
respect to any of the Obligations in excess of the amount or rate permitted
under or consistent with any applicable law, rule or regulation.
(b)
Payment at Highest Lawful Rate
. If any Borrower is not obliged
to make a payment that it would otherwise be required to make, as a result
of
Section 5.6(a)
, such Borrower shall make such payment to the maximum
extent permitted by or consistent with applicable laws, rules and
regulations.
(c)
Adjustment if Any Payment Exceeds Lawful Rate
. If any
provision of this Agreement or any of the other Credit Documents would obligate
any Borrower to make any payment of interest or other amount payable to any
Lender in an amount or calculated at a rate that would be prohibited by any
applicable law, rule or regulation, then notwithstanding such provision,
such
amount or rate shall be deemed to have been adjusted with retroactive effect
to
the maximum amount or rate of interest, as the case may be, as would not
be so
prohibited by law, such adjustment to be effected, to the extent necessary,
by
reducing the amount or rate of interest required to be paid by such Borrower
to
the affected Lender under
Section 2.8
.
(d) Notwithstanding
the foregoing, and after giving effect to all adjustments contemplated thereby,
if any Lender shall have received from any Borrower an amount in excess of
the
maximum permitted by any applicable law, rule or regulation, then such Borrower
shall be entitled, by notice in writing to the Administrative Agent to obtain
reimbursement from that Lender in an amount equal to such excess, and pending
such reimbursement, such amount shall be deemed to be an amount payable by
that
Lender to such Borrower.
SECTION
6.
Conditions Precedent to
Initial Borrowing
The
initial Borrowing under this Agreement is subject to the satisfaction of
the
following conditions precedent, except as otherwise agreed between the Parent
Borrower and the Administrative Agent.
6.1.
Credit
Documents
.
The Administrative Agent shall have
received:
(a) this
Agreement, executed and delivered by a duly authorized officer of Parent
Borrower, each Subsidiary Borrower and each Lender;
(b) a
Borrowing Base Certificate, certified as complete and correct in all material
respects, which calculates the Applicable Borrowing Base as of the last Business
Day of the most recent month ended at least 25 days prior to the Closing
Date;
(c) [Reserved];
(d) the
Security Agreement, executed and delivered by a duly authorized officer of
each
grantor party thereto; and
(e) the
Intercreditor Agreement, executed and delivered by a duly authorized officer
of
the applicable Credit Parties and of the Collateral Agent and the other agents
party thereto.
6.2.
Collateral
Except
for any items referred to on
Schedule 9.14(d)
:
(a)
All documents and instruments, including Uniform Commercial Code or other
applicable personal property and financing statements, reasonably requested
by
the Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by any Security Document and perfect such Liens to
the
extent required by, and with the priority required by, such Security Document
shall have been delivered to the Collateral Agent for filing, registration
or
recording and none of the Collateral shall be subject to any other pledges,
security interests or mortgages, except for liens permitted hereunder;
and
(b)
The Parent Borrower shall deliver to the Collateral Agent a completed Perfection
Certificate, executed and delivered by an Authorized Officer of the Parent
Borrower, together with all attachments contemplated thereby.
6.3.
Legal
Opinions
The
Administrative Agent shall have received the executed legal opinions of
(a) Simpson Thacher & Bartlett LLP, special New York counsel to the
Parent Borrower, substantially in the form of
Exhibit H-1
, (b) Susan
S. Lanigan, General Counsel of the Parent Borrower, substantially in the
form of
Exhibit H-2
, and (c) local counsel to the Parent Borrower and the
Administrative Agent in the jurisdictions listed on
Schedule 6.3
in
form and substance reasonably satisfactory to the Administrative
Agent. The Borrowers, the other Credit Parties and the Administrative
Agent hereby instruct such counsel to deliver such legal opinions.
6.4.
Contemporaneous
Debt Financings and Repayments.
(i) The
Parent Borrower shall have received gross proceeds of $1,175,000,000 from
the
issuance of Senior Notes under the Senior Notes Indenture, (ii) the Parent
Borrower shall have received gross proceeds of $725,000,000 from the issuance
of
Senior Subordinated Notes under the Senior Subordinated Notes Indenture and
(iii) the Parent Borrower and the applicable guarantors thereunder shall
have entered into the Term Loan Agreement providing for term borrowings in
an
aggregate principal amount of $2,300,000,000.
6.5.
Equity
Investments
Equity
Investments, which, to the extent constituting Stock other than common Stock,
shall be on terms and conditions and pursuant to documentation reasonably
satisfactory to the Joint Lead Arrangers and Bookrunners to the extent material
to the interests of the Lenders, in an amount not less than the Minimum Equity
Amount shall have been made.
6.6.
Closing
Certificates
The
Administrative Agent shall have received a certificate of the Credit Parties,
dated the Closing Date, substantially in the form of
Exhibit I
, with
appropriate insertions, executed by the President or any Vice President and
the
Secretary or any Assistant Secretary of each Credit Party, and attaching
the
documents referred to in
Section 6.7
and such other closing certificates
as it may reasonably request.
6.7.
Authorization
of Proceedings of Each Credit Party
.
The Administrative Agent shall have received a copy of the resolutions, in
form
and substance satisfactory to the Administrative Agent, of the board of
directors or other managers of each Credit Party (or a duly authorized committee
thereof) authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and
(b)
in the case of each Borrower, the extensions of credit contemplated
hereunder.
6.8.
Fees
.
The Agents shall have received the fees in the amounts previously agreed
in
writing by the Agents to be received on the Closing Date and all expenses
(including the reasonable fees, disbursements and other charges of counsel)
payable by the Credit Parties for which invoices have been presented prior
to
the Closing Date shall have been paid.
6.9.
Representations
and Warranties
.
On the Closing Date, (a) there shall be no breach of any representation
made by the Company in the Acquisition Agreement that is (i) material to
the interests of the Lenders and (ii) the breach of which would give the
Sponsor and/or any of its Affiliates formed to consummate the Merger (including
Merger Sub) the right to terminate their respective obligations thereunder,
and
(b) the representations and warranties made by the Credit Parties in
Section 8.2
,
Section 8.5
and
Section 8.7
, as they relate to
the Credit Parties at such time, shall be true and correct in all material
respects.
6.10.
Related
Agreements
.
The Administrative Agent shall have received a fully executed or conformed
copy
of the Acquisition Agreement which shall be in full force and
effect.
6.11.
Solvency
Certificate
.
On the Closing Date, the Administrative Agent shall have received a certificate
from an Authorized Officer of the Parent Borrower to the effect that after
giving effect to the consummation of the Transactions, the Parent Borrower
on a
consolidated basis with its Subsidiaries is Solvent.
6.12.
Merger
.
Concurrently with the initial Credit Event hereunder, the Merger shall have
been
consummated in accordance with the terms of the Acquisition Agreement, without
giving effect to any amendments or waivers thereto that are materially adverse
to the Lenders (including, without limitation, the definition of, and
representations, warranties and conditions relating to the absence of any,
“Company Material Adverse Effect” therein) without the reasonable consent of the
Joint Lead Arrangers and Bookrunners, and all Indebtedness of the Borrower
and
its Subsidiaries existing prior to the Merger (other than Indebtedness set
forth
on Schedule 10.1 and Indebtedness of Credit Parties owed to other Credit
Parties
permitted by
Section 10.1(b)
) shall have been repaid or repurchased in
full.
6.13.
Pro
Forma
Balance Sheet
.
The Administrative Agent shall have received a pro forma consolidated balance
sheet of the Parent Borrower as of the last day of the most recently completed
fiscal quarter ended at least twenty consecutive Business Days prior to the
Closing Date, after giving effect to the Transactions, together with a
certificate of an Authorized Officer of the Parent Borrower to the effect
that
such statement accurately presents the pro forma consolidated financial position
of the Parent Borrower in accordance with GAAP.
6.14.
Patriot
Act
.
The Joint Lead Arrangers and Bookrunners shall have received such documentation
and information as is reasonably requested in writing at least 10 days prior
to
the Closing Date by the Administrative Agent about the Parent Borrower, the
Subsidiary Borrowers and the Guarantors in respect of applicable “know your
customer” and anti-money laundering rules and regulations, including, without
limitation, the Patriot Act.
SECTION
7.
Conditions Precedent to All Credit
Events
The
agreement of each Lender to make any Loan requested to be made by it on any
date
(excluding Mandatory Borrowings, Protective Advances and Revolving Credit
Loans
required to be made by the Revolving Credit Lenders in respect of Unpaid
Drawings pursuant to
Sections 3.3
and
3.4
), and the obligation of
the Letter of Credit Issuer to issue Letters of Credit on any date, is subject
to the satisfaction of the following conditions precedent:
7.1.
No
Default; Representations and Warranties
.
At the time of each Credit Event and also after giving effect thereto (other
than any Credit Event on the Closing Date) (a) no Default or Event of
Default shall have occurred and be continuing and (b) all representations
and
warranties made by any Credit Party contained herein or in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and
as of
the date of such Credit Event (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of
such
earlier date).
7.2.
Notice
of Borrowing
.
(a) Prior
to the making of each Revolving Credit Loan (other than any Revolving Credit
Loan made pursuant to
Section 3.4(a)
or
2.1(e)
) and each Swingline
Loan, the Administrative Agent shall have received a Notice of Borrowing
(whether in writing or by telephone) meeting the requirements of
Section
2.3
.
(b) Prior
to the issuance of each Letter of Credit, the Administrative Agent and the
Letter of Credit Issuer shall have received a Letter of Credit Request meeting
the requirements of
Section 3.2(a)
.
7.3.
Additional
Borrowing Condition
.
If a Liquidity Event shall have occurred and be continuing, the Borrowers
shall
have demonstrated to the reasonable satisfaction of the Administrative Agent
that the ratio of (a) Consolidated EBITDA for the relevant Test Period to
(b)
the sum, for the relevant Test Period, of (i) the cash interest expense
including that attributable to Capital Leases in accordance with GAAP, net
of
cash interest income, of the Parent Borrower and the Restricted Subsidiaries,
on
a consolidated basis in accordance with GAAP with respect to all outstanding
Indebtedness of the Parent Borrower and the Restricted Subsidiaries, including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers’ acceptance financing and net costs under Hedge
Agreements (other than currency swap agreements, currency future or option
contracts and other similar agreements) and (ii) any cash payments made during
such period in respect of obligations referred to in clause (y) below relating
to Funded Debt that were amortized or accrued in a
previous
period (other than any such obligations resulting from the discounting
of
Indebtedness in connection with the application of purchase accounting
in
connection with the Transaction or any Permitted Acquisition), but excluding,
however, (a) amortization of deferred financing costs and any other amounts
of
non-cash interest, (b) the accretion or accrual of discounted liabilities
during
such period, and (c) all non-recurring cash interest expense consisting
of
liquidated damages for failure to timely comply with registration rights
obligations and financing fees, all as calculated on a consolidated basis
in
accordance with GAAP and excluding, for the avoidance of doubt, any interest
in
respect of items excluded from Indebtedness in the proviso to the definition
thereof,
provided
that (x) except as provided in clause (y) below, there
shall be excluded from Consolidated Interest Expense for any period the
cash
interest expense (or cash interest income) of all Unrestricted Subsidiaries
for
such period to the extent otherwise included in Consolidated Interest Expense,
(y) there shall be included in determining Consolidated Interest Expense
for any
period the cash interest expense (or income) of any Acquired Entity or
Business
acquired during such period and of any Converted Restricted Subsidiary
converted
during such period, in each case based on the cash interest expense (or
income)
of such Acquired Entity or Business or Converted Restricted Subsidiary
for such
period (including the portion thereof occurring prior to such acquisition
or
conversion) assuming any Indebtedness incurred or repaid in connection
with any
such acquisition or conversion had been incurred or prepaid on the first
day of
such period, and (z) there shall be excluded from determining Consolidated
Interest Expense for any period the cash interest expense (or income) of
any
Sold Entity or Business disposed of during such period, based on the cash
interest expense (or income) relating to any Indebtedness relieved, retired
or
repaid in connection with any such disposition of such Sold Entity or Business
for such period (including the portion thereof occurring prior to such
disposal)
assuming such debt relieved, retired or repaid in connection with such
disposition had been relieved, retired or repaid on the first day of such
period, calculated on a Pro Forma Basis as of the last day of the fiscal
quarter
for the Test Period most recently then ended for which the Administrative
Agent
has received financial statements of the Parent Borrower, is equal to or
greater
than 1.0 to 1.0. For purposes of determining satisfaction with the
ratio set forth in this Section 7.3, any Specified Equity Contribution
will, at
the request of the Parent Borrower, be included in the calculation of
Consolidated EBITDA,
provided
that (a) in each Test Period there shall be
at least two fiscal quarters in respect of which no Specified Equity
Contribution is made and (b) the amount of any Specified Equity Contribution
shall be no greater than the amount required to cause the Borrowers to
be in
compliance with such ratio specified above.
The
acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that
all
the applicable conditions specified in
Section 7
above have been
satisfied as of that time.
SECTION
8.
Representations, Warranties and
Agreements
In
order
to induce the Lenders to enter into this Agreement, to make the Loans and
issue
or participate in Letters of Credit as provided for herein, each Borrower
makes
(on the Closing Date and on each other date as required or otherwise set
forth
in this Agreement) the following representations and warranties to, and
agreements with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans and the issuance of
the
Letters of Credit:
8.1.
Corporate
Status
.
Each of the Parent Borrower and each Material Subsidiary (a) is a duly organized
and validly existing corporation or other entity in good standing under the
laws
of the jurisdiction of its organization and has the corporate or other
organizational power and authority to own its property and assets and to
transact the business in which it is engaged and (b) has duly qualified and
is authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure
to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.
8.2.
Corporate
Power and Authority
.
Each Credit Party has the corporate or other organizational power and authority
to execute, deliver and carry out the terms and provisions of the Credit
Documents to which it is a party and has taken all necessary corporate or
other
organizational action to authorize the execution, delivery and performance
of
the Credit Documents to which it is a party. Each Credit Party has
duly executed and delivered each Credit Document to which it is a party and
each
such Credit Document constitutes the legal, valid and binding obligation
of such
Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws
affecting creditors’ rights generally and subject to general principles of
equity.
8.3.
No
Violation
.
Neither the execution, delivery or performance by any Credit Party of the
Credit
Documents to which it is a party nor compliance with the terms and provisions
thereof nor the consummation of the Merger and the other transactions
contemplated hereby or thereby will (a) contravene any applicable provision
of any material law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (b) result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the
obligation to create or impose) any Lien upon any of the property or assets
of
such Credit Party or any of the Restricted Subsidiaries (other than Liens
created under the Credit Documents or Liens subject to the Intercreditor
Agreement) pursuant to the terms of any material indenture, loan agreement,
lease agreement, mortgage, deed of trust, agreement or other material instrument
to which such Credit Party or any of the Restricted Subsidiaries is a party
or
by which it or any of its property or assets is bound (any such term, covenant,
condition or provision, a “
Contractual Requirement
”) other than
(x) any such breach, default or Lien that could not reasonably be expected
to
result in a Material Adverse Effect or (y) as disclosed on
Schedule 8.3
or (c) violate any provision of the certificate of incorporation, by-laws
or
other organizational documents of such Credit Party or any of the Restricted
Subsidiaries.
8.4.
Litigation
.
Except as set forth on
Schedule 8.4
, there are no actions, suits or
proceedings (including Environmental Claims) pending or, to the knowledge
of the
Parent Borrower, threatened with respect to the Parent Borrower or any of
its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.
8.5.
Margin
Regulations
.
Neither the making of any Loan hereunder nor the use of the proceeds thereof
will violate the provisions of Regulation T, U or X of the
Board.
8.6.
Governmental
Approvals
.
The execution, delivery and performance of the Acquisition Agreement and
each
Credit Document do not require any consent or approval of,
registration
or filing with, or other action by, any Governmental Authority, except
for
(i) such as have been obtained or made and are in full force and effect,
(ii) filings and recordings in respect of the Liens created pursuant to
the
Security Documents and (iii) such licenses, approvals, authorizations or
consents the failure of which to obtain or make could not reasonably be
expected
to have a Material Adverse Effect.
8.7.
Investment
Company Act
.
No Borrower is an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
8.8.
True
and Complete Disclosure
.
(a)
None of the written factual information and written data (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of the Parent
Borrower, any of the Subsidiaries or any of their respective authorized
representatives to the Administrative Agent, any Joint Lead Arranger, and/or
any
Lender on or before the Closing Date (including all such information and
data
contained in (i) the Confidential Information Memorandum (as updated prior
to
the Closing Date and including all information incorporated by reference
therein) and (ii) the Credit Documents) for purposes of or in connection
with
this Agreement or any transaction contemplated herein contained any untrue
statement of any material fact or omitted to state any material fact necessary
to make such information and data (taken as a whole) not misleading at such
time
in light of the circumstances under which such information or data was
furnished, it being understood and agreed that for purposes of this
Section
8.8(a)
, such factual information and data shall not include
pro
forma
financial information, projections or estimates
(including financial estimates, forecasts and other forward-looking information)
and information of a general economic or general industry nature.
(b)
The projections (including financial estimates, forecasts and other
forward-looking information) contained in the information and data referred
to
in
Section 8.8(a)
were based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed
as
facts and that actual results during the period or periods covered by any
such
projections may differ from the projected results.
8.9.
Financial
Condition; Financial Statements
.
(a) The unaudited historical consolidated financial information of
the Borrower as set forth in the Confidential Information Memorandum and
(b) the Historical Financial Statements, in each case present fairly in all
material respects the consolidated financial position of the Borrower at
the
respective dates of said information, statements and results of operations
for
the respective periods covered thereby. The unaudited pro forma
consolidated balance sheet of the Borrower and its Subsidiaries as
at May 4, 2007 (including the notes thereto) (the
“
Pro Forma Balance Sheet
”) and the unaudited pro forma
consolidated statement of operations of the Borrower and its Subsidiaries
for
the 12-month period ending on such date (together with the Pro Forma Balance
Sheet, the “
Pro Forma Financial Statements
”), copies of which
have heretofore been furnished to the Administrative Agent, have been prepared
based on (x) the Historical Financial Statements and (y) the unaudited
historical consolidated financial information described in
clause (a)
of
this
Section 8.9
and have been prepared in good faith, based on
assumptions believed by the Borrower to be reasonable as of the date of delivery
thereof, and present fairly in all material
respects
on a Pro Forma Basis the estimated financial position of the Borrower and
its
Subsidiaries as at May 4, 2007 and their estimated results of operations
for the
period covered thereby. The financial statements referred to in
clause (b)
of this
Section 8.9
have been prepared in
accordance with GAAP consistently applied except to the extent provided
in the
notes to said financial statements. After the Closing Date, there has
been no Material Adverse Effect.
8.10.
Tax
Matters
.
Except where the failure of which could not be reasonably expected to have
a
Material Adverse Effect, (a) each of the Borrower and the Subsidiaries has
filed
all federal income tax returns and all other tax returns, domestic and foreign,
required to be filed by it and has paid all material taxes payable by it
that
have become due, other than those (i) not yet delinquent or
(ii) contested in good faith as to which adequate reserves have been
provided to the extent required by law and in accordance with GAAP and (b) each
Borrower and each of the Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of management of such Borrower or such
Subsidiary) in accordance with GAAP for the payment of, all federal, state,
provincial and foreign taxes applicable for the current fiscal year to the
Closing Date.
8.11.
Compliance
with ERISA
.
(a)
Each Plan is in compliance with ERISA, the Code and any applicable Requirement
of Law; no Reportable Event has occurred (or is reasonably likely to occur)
with
respect to any Plan; no Plan is insolvent or in reorganization (or is reasonably
likely to be insolvent or in reorganization), and no written notice of any
such
insolvency or reorganization has been given to the Parent Borrower or any
ERISA
Affiliate; no Plan (other than a Multiemployer Plan) has an accumulated or
waived funding deficiency (or is reasonably likely to have such a deficiency);
on and after the effectiveness of the Pension Act, each Plan that is subject
to
Title IV of ERISA has satisfied the minimum funding standards (within the
meaning of Section 412 of the Code or Section 302 of ERISA) applicable to
such
Plan, and there has been no determination that any such Plan is, or is expected
to be, in “at risk” status (within the meaning of Section 4010(d)(2) of ERISA);
none of the Parent Borrower or any ERISA Affiliate has incurred (or is
reasonably likely to incur) any liability to or on account of a Plan pursuant
to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA
or Section 4971 or 4975 of the Code or has been notified in writing that
it will
incur any liability under any of the foregoing Sections with respect to any
Plan; no proceedings have been instituted (or are reasonably likely to be
instituted) to terminate or to reorganize any Plan or to appoint a trustee
to
administer any Plan, and no written notice of any such proceedings has been
given to the Parent Borrower or any ERISA Affiliate; and no lien imposed
under
the Code or ERISA on the assets of the Parent Borrower or any ERISA Affiliate
exists (or is reasonably likely to exist) nor has the Parent Borrower or
any
ERISA Affiliate been notified in writing that such a lien will be imposed
on the
assets of the Parent Borrower or any ERISA Affiliate on account of any Plan,
except to the extent that a breach of any of the representations, warranties
or
agreement in this
Section 8.11(a)
would not result, individually or in
the aggregate, in an amount of liability that would be reasonably likely
to have
a Material Adverse Effect. No Plan (other than a Multiemployer Plan)
has an Unfunded Current Liability that would, individually or when taken
together with any other liabilities referenced in this
Section 8.11(a)
,
be reasonably likely to have a Material Adverse Effect. With respect
to Plans that are Multiemployer Plans, the representations and warranties
in
this Section 8.11(a), other than any made with respect to
(i) liability
under Section 4201 or 4204 of ERISA or (ii) liability for termination or
reorganization of such Plans under ERISA, are made to the best knowledge
of each
Borrower.
(b) All
Foreign Plans are in compliance with, and have been established, administered
and operated in accordance with, the terms of such Foreign Plans and applicable
law, except for any failure to so comply, establish, administer or operate
the
Foreign Plans as would not reasonably be expected to have a Material Adverse
Effect. All contributions or other payments which are due with
respect to each Foreign Plan have been made in full and there are no funding
deficiencies thereunder, except to the extent any such events would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.12.
Subsidiaries
.
Schedule
8.12
lists each Subsidiary of the Parent Borrower (and the direct and
indirect ownership interest of the Parent Borrower therein), in each case
existing on the Closing Date. Each Material Subsidiary as of the
Closing Date has been so designated on
Schedule 8.12
.
8.13. I
ntellectual
Property
.
The Parent Borrower and each of the Subsidiaries have obtained all intellectual
property, free from burdensome restrictions, that is necessary for the operation
of their respective businesses as currently conducted and as proposed to
be
conducted, except where the failure to obtain any such rights could not
reasonably be expected to have a Material Adverse Effect.
8.14.
Environmental
Laws
.
(a) Except
as could not reasonably be expected to have a Material Adverse
Effect: (i) the Parent Borrower and each of the Subsidiaries and all
Real Estate are in compliance with all Environmental Laws; (ii) neither the
Parent Borrower nor any Subsidiary is subject to any Environmental Claim
or any
other liability under any Environmental Law; (iii) neither the Parent
Borrower nor any Subsidiary is conducting any investigation, removal, remedial
or other corrective action pursuant to any Environmental Law at any location;
and (iv) no underground storage tank or related piping, or any impoundment
or disposal area containing Hazardous Materials is located at, on or under
any
Real Estate currently owned or leased by the Parent Borrower or any of its
Subsidiaries.
(b)
Neither the Parent Borrower nor any of the Subsidiaries has treated, stored,
transported, released or disposed or arranged for disposal or transport for
disposal of Hazardous Materials at, on, under or from any currently or formerly
owned or leased Real Estate or facility in a manner that could reasonably
be
expected to have a Material Adverse Effect.
8.15.
Properties
.
Except as set forth on
Schedule 8.15(a)
, the Parent Borrower and each of
the Subsidiaries have good and marketable title to or leasehold interests
in all
properties that are necessary for the operation of their respective businesses
as currently conducted and as proposed to be conducted, free and clear of
all
Liens (other than any Liens permitted by this Agreement) and except where
the
failure to have such good title could not reasonably be expected to have
a
Material Adverse Effect.
8.16.
Solvency
.
On the Closing Date (after giving effect to the Transactions), immediately
following the making of each Loan and after giving effect to the application
of
the proceeds of such Loans, the Parent Borrower on a consolidated basis with
its
Subsidiaries will be Solvent.
SECTION
9.
Affirmative
Covenants
Each
Borrower hereby covenants and agrees that on the Closing Date and thereafter,
until the Commitments, the Swingline Commitment and each Letter of Credit
have
terminated and the Loans and Unpaid Drawings, together with interest, fees
and
all other Obligations incurred hereunder (other than contingent indemnity
obligations), are paid in full:
9.1.
Information
Covenants
.
The Parent Borrower will furnish to the Administrative Agent (which shall
promptly make such information available to the Lenders in accordance with
its
customary practice):
(a)
Annual Financial Statements
. As soon as available and in any
event within 5 days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) (or, if such financial statements are not required to be filed
with
the SEC, on or before the date that is 95 days after the end of each such
fiscal
year), the consolidated balance sheets of the Parent Borrower and the
Subsidiaries and, if different, the Parent Borrower and the Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related
consolidated statements of operations and cash flows for such fiscal year,
setting forth comparative consolidated figures for the preceding fiscal years
(or, in lieu of such audited financial statements of the Parent Borrower
and the
Restricted Subsidiaries, a detailed reconciliation, reflecting such financial
information for the Parent Borrower and the Restricted Subsidiaries, on the
one
hand, and the Parent Borrower and the Subsidiaries, on the other hand), all
in
reasonable detail and prepared in accordance with GAAP, and, in each case,
certified by independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit or
as to
the status of the Borrower or any of the Material Subsidiaries (or a group
of
Subsidiaries that together would constitute a Material Subsidiary) as to
a going
concern, together in any event with a certificate of such accounting firm
stating that in the course of either (i) its regular audit of the
consolidated business of the Parent Borrower, which audit was conducted in
accordance with generally accepted auditing standards or (ii) performing
certain other procedures permitted by professional standards, such accounting
firm has obtained no knowledge of any Event of Default relating to
Section 10.9
that has occurred and is continuing or, if in the
opinion of such accounting firm such an Event of Default has occurred and
is
continuing, a statement as to the nature thereof.
(b)
Quarterly
Financial Statements
. On or before the date that is 75 days after
the end of the fiscal quarter ending August 3, 2007 and thereafter as soon
as
available and in any event within 5 days after the date on which such financial
statements are required to be filed with the SEC (after giving effect to
any
permitted extensions) with respect to each of the first three quarterly
accounting periods in each fiscal year of the Parent Borrower (or, if such
financial statements are not required to be filed with the SEC, on or before
the
date that is 50 days after the end of each such quarterly accounting period),
the consolidated balance sheets of the Parent Borrower and the Subsidiaries
and,
if different, the Parent Borrower and the
Restricted
Subsidiaries, in each case as at the end of such quarterly period and the
related consolidated statements of operations for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last
day of
such quarterly period, and the related consolidated statement of cash flows
for
such quarterly accounting period and for the elapsed portion of the fiscal
year
ended with the last day of such quarterly period, and setting forth comparative
consolidated figures for the related periods in the prior fiscal year or,
in the
case of such consolidated balance sheet, for the last day of the prior
fiscal
year (or, in lieu of such unaudited financial statements of the Parent
Borrower
and the Restricted Subsidiaries, a detailed reconciliation reflecting such
financial information for the Parent Borrower and the Restricted Subsidiaries,
on the one hand, and the Parent Borrower and the Subsidiaries, on the other
hand), all of which shall be certified by an Authorized Officer of the
Parent
Borrower as fairly presenting in all material respects the financial condition,
results of operations, stockholders’ equity and cash flows of the Parent
Borrower and its Subsidiaries in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments.
(c)
Officer’s
Certificates
. At the time of the delivery of the financial
statements provided for in
Section 9.1(a)
and
(b)
, a certificate
of an Authorized Officer of the Parent Borrower to the effect that no Default
or
Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall set forth
(i)
a specification of any change in the identity of the Restricted Subsidiaries
and
Unrestricted Subsidiaries as at the end of such fiscal year or period, as
the
case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries,
respectively, provided to the Lenders on the Closing Date or the most recent
fiscal year or period, as the case may be, (ii) the then applicable Status
and (iii) the amount of any Pro Forma Adjustment not previously set forth
in a Pro Forma Adjustment Certificate or any change in the amount of a Pro
Forma
Adjustment set forth in any Pro Forma Adjustment Certificate previously provided
and, in either case, in reasonable detail, the calculations and basis
therefor. At the time of the delivery of the financial statements
provided for in
Section 9.1(a)
, (i) a certificate of an Authorized
Officer of the Parent Borrower setting forth in reasonable detail the Applicable
Amount and the Applicable Equity Amount as at the end of the fiscal year
to
which such financial statements relate and (ii) a certificate of an Authorized
Officer of the Parent Borrower setting forth the information required pursuant
to Section I (other than section D thereof) of the Perfection Certificate
or
confirming that there has been no change in such information since the Closing
Date or the date of the most recent certificate delivered pursuant to this
clause (c)(ii)
, as the case may be.
(d)
Notice
of Default; Litigation
. Promptly after an Authorized Officer of
the Parent Borrower or any of the Subsidiaries obtains knowledge thereof,
notice
of (i) the occurrence of any event that constitutes a Default or Event of
Default, which notice shall specify the nature thereof, the period of existence
thereof and what action the Parent Borrower proposes to take with respect
thereto and (ii) any litigation or governmental proceeding pending against
the
Parent Borrower or any of the Subsidiaries that could reasonably be expected
to
be determined adversely and, if so determined, to result in a Material Adverse
Effect.
(e)
Environmental
Matters
. Promptly after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters would
not, individually, or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect, notice of:
(i) any
pending or threatened Environmental Claim against any Credit Party or any
Real
Estate;
(ii) any
condition or occurrence on any Real Estate that (x) could reasonably be expected
to result in noncompliance by any Credit Party with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of an Environmental
Claim against any Credit Party or any Real Estate;
(iii) any
condition or occurrence on any Real Estate that could reasonably be anticipated
to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental
Law; and
(iv)
the conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, release or threatened
release of any Hazardous Material on, at, under or from any Real
Estate.
All
such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
response thereto. The term “
Real Estate
” shall mean
land, buildings and improvements owned or leased by any Credit Party, but
excluding all operating fixtures and equipment, whether or not incorporated
into
improvements.
(f)
Other Information
. Promptly upon filing thereof, copies of any
filings (including on Form 10-K, 10-Q or 8-K) or registration statements
with, and reports to, the SEC or any analogous Governmental Authority in
any
relevant jurisdiction by the Parent Borrower or any of the Subsidiaries (other
than amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Administrative
Agent), exhibits to any registration statement and, if applicable, any
registration statements on Form S-8) and copies of all financial statements,
proxy statements, notices and reports that the Parent Borrower or any of
the
Subsidiaries shall send to the holders of any publicly issued debt of the
Parent
Borrower and/or any of the Subsidiaries (including the Notes (whether publicly
issued or not)) and lenders and agents under the Term Loan Agreement, in
each
case in their capacity as such holders, lenders or agents (in each case to
the
extent not theretofore delivered to the Administrative Agent pursuant to
this
Agreement) and, with reasonable promptness, such other information (financial
or
otherwise) as the Administrative Agent on its own behalf or on behalf of
any
Lender (acting through the Administrative Agent) may reasonably request in
writing from time to time.
(g)
Pro
Forma Adjustment Certificate
. Not later than any date on which
financial statements are delivered with respect to any Test Period in which
a
Pro Forma Adjustment is made as a result of the consummation of the acquisition
of any Acquired Entity or Business by the Parent Borrower or any Restricted
Subsidiary for which there shall be a Pro Forma Adjustment, a certificate
of an
Authorized Officer of the Parent Borrower setting forth the amount of such
Pro
Forma Adjustment and, in reasonable detail, the calculations and basis
therefor.
(h)
Borrowing
Base Certificate
. On the 20
th
day
of each
calendar month, a Borrowing Base Certificate showing the Applicable Borrowing
Base and the calculation of
Excess
Availability in each case as of the close of business on the last day of
the
immediately preceding calendar month, each such Borrowing Base Certificate
to be
certified as complete and correct in all material respects on behalf of
the
Parent Borrower by a Financial Officer of the Parent Borrower (each a
“
Monthly Borrowing Base Certificate
”). In addition,
(i) if Excess Availability is less than 10% of the Total Revolving Credit
Commitments, or (ii) if any Event of Default has occurred and is continuing,
a
Borrowing Base Certificate showing the Parent Borrower’s reasonable estimate
(which shall be based on the most current accounts receivable aging reasonably
available and shall be calculated in a consistent manner with the most
recent
Monthly Borrowing Base Certificates delivered pursuant to this Section)
of the
Applicable Borrowing Base (but not the calculation of Excess Availability)
as of
the close of business on the last day of the immediately preceding calendar
week, unless the Administrative Agent otherwise agrees, shall be furnished
on
Wednesday of each week (or, if Wednesday is not a Business Day, on the
next
succeeding Business Day).
(i)
Collateral Reporting
. On the 20
th
day of each
calendar month, in each case as of the close of business on the last day
of the
immediately preceding calendar month:
(i)
a detailed aging of the Credit Parties’ Accounts (including Eligible Credit Card
Receivables) reconciled to the Monthly Borrowing Base Certificate delivered
as
of such date in a form reasonably acceptable to the Administrative Agent;
and
(ii) a
schedule detailing the Credit Parties’ Inventory, in form reasonably
satisfactory to the Administrative Agent, (1) by location, (2) by category,
(3)
including a report of material variances or other results of Inventory counts
performed by any Credit Party since the last Inventory schedule, (4) reconciled
to the Monthly Borrowing Base Certificate delivered as of such date, and
(5)
containing such other information reasonably requested by the Administrative
Agent.
(j)
Projections
. Within ninety (90) days after
the end of each fiscal year (beginning with the fiscal year ending on or
about
January 31, 2009) of the Parent Borrower, a reasonably detailed consolidated
budget for the following fiscal year as customarily prepared by management
of
the Parent Borrower for its internal use (including a projected consolidated
balance sheet of the Parent Borrower and its Subsidiaries as of the end of
the
following fiscal year, the related consolidated statements of projected cash
flow and projected income and a summary of the material underlying assumptions
applicable thereto) (collectively, the “
Projections
”), which
Projections shall in each case be accompanied by a certificate of an Authorized
Officer stating that such Projections have been prepared in good faith on
the
basis of the assumptions stated therein, which assumptions were believed
to be
reasonable at the time of preparation of such Projections, it being understood
that actual results may vary from such Projections.
Notwithstanding
the foregoing, the obligations in
clauses (a)
,
(b)
and
(f)
of this
Section 9.1
may be satisfied with respect to financial
information of the Parent Borrower and the Restricted Subsidiaries by furnishing
(A) the applicable financial statements of any direct or indirect parent
of the
Parent Borrower or (B) the Parent Borrower’s (or any direct or indirect parent
thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the
SEC;
provided
that, with respect to each of
subclauses (A)
and
(B)
of this paragraph, to the extent such
information
relates to a parent of the Parent Borrower, such information is accompanied
by
consolidating or other information that explains in reasonable detail the
differences between the information relating to such parent, on the one
hand,
and the information relating to the Parent Borrower and the Restricted
Subsidiaries on a standalone basis, on the other hand.
9.2.
Books,
Records and Inspections
.
(a) The
Parent Borrower will, and will cause each Restricted Subsidiary to, permit
officers and designated representatives of the Administrative Agent or the
Required Lenders (as accompanied by the Administrative Agent) to visit and
inspect any of the properties or assets of the Parent Borrower or such
Subsidiary in whomsoever’s possession to the extent that it is within such
party’s control to permit such inspection (and shall use commercially reasonable
efforts to cause such inspection to be permitted to the extent that it is
not
within such party’s control to permit such inspection), and to examine the books
and records of the Parent Borrower and any such Subsidiary and discuss the
affairs, finances and accounts of the Parent Borrower and of any such Subsidiary
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Required Lenders may desire (and
subject, in the case of any such meetings or advice from such independent
accountants, to such accountants’ customary policies and procedures);
provided
that, excluding any such visits and inspections during the
continuation of an Event of Default (a) only the Administrative Agent on
behalf
of the Required Lenders may exercise rights of the Administrative Agent and
the
Lenders under this
Section 9.2
, and (b) only one such visit shall be
at the Parent Borrower’s expense;
provided
further
that when an
Event of Default exists, the Administrative Agent (or any of its representatives
or independent contractors) or any representative of the Required Lenders
may do
any of the foregoing at the expense of the Parent Borrower at any time during
normal business hours and upon reasonable advance notice. The
Administrative Agent and the Required Lenders shall give the Parent Borrower
the
opportunity to participate in any discussions with the Parent Borrower’s
independent public accountants.
(b) Independently
of or in connection with the visits and inspections provided for in clause
(a) above, but not more than twice a year at the expense of the Borrowers
in
respect of appraisals and not more than twice a year at the expense of the
Borrowers in respect of field examinations (in each case unless required
by
applicable law or unless an Event of Default has occurred and is continuing
in which case the Administrative Agent may cause additional appraisals and
field examinations to be undertaken at the expense of the Borrowers) upon
the
request of the Administrative Agent after reasonable prior notice, the Parent
Borrower will, and will cause each Subsidiary Borrower to, permit the
Administrative Agent or professionals reasonably acceptable to the Parent
Borrower (including investment bankers, consultants, accountants, lawyers
and
appraisers) retained by the Administrative Agent to conduct appraisals,
commercial finance examinations and other evaluations (including updates
thereof), including, without limitation, (i) of the Parent Borrower’s practices
in the computation of the Applicable Borrowing Base, and (ii) inspecting,
verifying and auditing the Collateral. The Borrowers shall pay the fees and
expenses of the Administrative Agent or such professionals with respect to
such evaluations and appraisals in accordance with the provisions set forth
in
the immediately preceding sentence.
9.3.
Maintenance
of Insurance
.
The Parent Borrower will, and will cause each Material Subsidiary to, at
all
times maintain in full force and effect, pursuant to self-insurance arrangements
or with insurance companies that the Parent Borrower believes (in the good
faith
judgment of the management of the Parent Borrower) are financially sound
and
responsible at the time the relevant coverage is placed or renewed, insurance
in
at least such amounts (after giving effect to any self-insurance which the
Parent Borrower believes (in the good faith judgment of management of the
Parent
Borrower) is reasonable and prudent in light of the size and nature of its
business) and against at least such risks (and with such risk retentions)
as the
Parent Borrower believes (in the good faith judgment of management of the
Parent
Borrower) is reasonable and prudent in light of the size and nature of its
business; and will furnish to the Administrative Agent, upon written request
from the Administrative Agent, information presented in reasonable detail
as to
the insurance so carried.
9.4.
Payment
of Taxes
.
The Parent Borrower will pay and discharge, and will cause each of the
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or
upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful material claims in respect of any
Taxes
imposed, assessed or levied that, if unpaid, could reasonably be expected
to
become a material Lien upon any properties of the Parent Borrower or any
of the
Restricted Subsidiaries,
provided
that neither the Parent Borrower, nor
any of the Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim that is being contested in good faith and by proper
proceedings if it has maintained adequate reserves (in the good faith judgment
of management of the Parent Borrower) with respect thereto in accordance
with
GAAP and the failure to pay could not reasonably be expected to result in
a
Material Adverse Effect.
9.5.
Consolidated
Corporate Franchises
.
The Parent Borrower will do, and will cause each Material Subsidiary to do,
or
cause to be done, all things necessary to preserve and keep in full force
and
effect its existence, corporate rights and authority, except to the extent
that
the failure to do so could not reasonably be expected to have a Material
Adverse
Effect;
provided
,
however
, that the Parent Borrower and its
Subsidiaries may consummate any transaction permitted under
Section 10.3
,
10.4
or
10.5
.
9.6.
Compliance
with Statutes, Regulations, Etc.
The
Parent Borrower will, and will cause each Subsidiary to, comply with all
applicable laws, rules, regulations and orders applicable to it or its property,
including all governmental approvals or authorizations required to conduct
its
business, and to maintain all such governmental approvals or authorizations
in
full force and effect, in each case except where the failure to do so could
not
reasonably be expected to have a Material Adverse Effect.
9.7.
ERISA
.
(a) Promptly after the Parent Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following events that,
individually or in the aggregate (including in the aggregate such events
previously disclosed or exempt from disclosure hereunder, to the extent the
liability therefor remains outstanding), would be reasonably likely to have
a
Material Adverse Effect, the Parent Borrower will deliver to the Administrative
Agent a certificate of an Authorized Officer or any other senior officer
of the
Parent Borrower setting forth details as to such occurrence and the action,
if
any, that the Parent
Borrower
or such ERISA Affiliate is required or proposes to take, together with
any
notices (required, proposed or otherwise) given to or filed with or by
the
Parent Borrower, such ERISA Affiliate, the PBGC, a Plan participant (other
than
notices relating to an individual participant’s benefits) or the Plan
administrator with respect thereto: that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred or an
application is to be made to the Secretary of the Treasury for a waiver
or
modification of the minimum funding standard (including any required installment
payments) or an extension of any amortization period under Section 412
of the
Code with respect to a Plan; that a Plan having an Unfunded Current Liability
has been or is to be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA (including the giving of written notice thereof);
that a
Plan has an Unfunded Current Liability that has or will result in a lien
under
ERISA or the Code; that proceedings will be or have been instituted to
terminate
a Plan having an Unfunded Current Liability (including the giving of written
notice thereof); that a proceeding has been instituted against the Parent
Borrower or an ERISA Affiliate pursuant to Section 515 of ERISA to collect
a
delinquent contribution to a Plan; that the PBGC has notified the Parent
Borrower or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Parent Borrower or any ERISA Affiliate has
failed
to make a required installment or other payment pursuant to Section 412
of the
Code with respect to a Plan; or that the Parent Borrower or any ERISA Affiliate
has incurred or will incur (or has been notified in writing that it will
incur)
any liability (including any contingent or secondary liability) to or on
account
of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Code.
(b) Promptly
following any request therefor, on and after the effectiveness of the Pension
Act, the Parent Borrower will deliver to the Administrative Agent copies
of (i)
any documents described in Section 101(k) of ERISA that the Parent Borrower
and
any of its Subsidiaries or any ERISA Affiliate may request with respect to
any
Multiemployer Plan and (ii) any notices described in Section 101(l) of
ERISA that the Parent Borrower and any of its Subsidiaries or any ERISA
Affiliate may request with respect to any Multiemployer Plan; provided that
if
the Parent Borrower, any of its Subsidiaries or any ERISA Affiliate has not
requested such documents or notices from the administrator or sponsor of
the
applicable Multiemployer Plan, the Parent Borrower, the applicable
Subsidiary(ies) or the ERISA Affiliate(s) shall promptly make a request for
such
documents or notices from such administrator or sponsor and shall provide
copies
of such documents and notices promptly after receipt thereof.
9.8.
Maintenance
of Properties
.
The Parent Borrower will, and will cause each of the Restricted Subsidiaries
to,
keep and maintain all property material to the conduct of its business in
good
working order and condition, ordinary wear and tear excepted, except to the
extent that the failure to do so could reasonably be expected to have a Material
Adverse Effect.
9.9.
Transactions
with Affiliates
.
The Parent Borrower will conduct, and cause each of the Restricted Subsidiaries
to conduct, all transactions with any of its Affiliates (other than the Parent
Borrower and the Restricted Subsidiaries) on terms that are substantially
as
favorable to the Parent Borrower or such Restricted Subsidiary as it would
obtain in a comparable arm’s-length transaction with a Person that is not an
Affiliate,
provided
that the foregoing restrictions shall not apply to
(a) the payment of customary fees to the Sponsors for management, consulting
and
financial services rendered to the Parent Borrower and the
Subsidiaries
and customary investment banking fees paid to the Sponsors for services
rendered
to the Parent Borrower and the Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions, (b) transactions permitted
by
Section 10.6
, (c) the payment of the Transaction Expenses, (d)
the issuance of Stock or Stock Equivalents of Holdings to the management
of the
Parent Borrower (or any direct or indirect parent thereof) or any of its
Subsidiaries in connection with the Transactions or pursuant to arrangements
described in
clause (f)
of this
Section 9.9
, (e) loans, advances
and other transactions between or among the Parent Borrower, any Subsidiary
or
any joint venture (regardless of the form of legal entity) in which the
Parent
Borrower or any Subsidiary has invested (and which Subsidiary or joint
venture
would not be an Affiliate of the Parent Borrower but for the Parent Borrower’s
or a Subsidiary’s ownership of Stock or Stock Equivalents in such joint venture
or Subsidiary) to the extent permitted under
Section 10
, (f) employment
and severance arrangements between the Parent Borrower and the Subsidiaries
and
their respective officers, employees or consultants (including management
and
employee benefit plans or agreements, stock option plans and other compensatory
arrangements) in the ordinary course of business, (g) payments by the Parent
Borrower (and any direct or indirect parent thereof) and the Subsidiaries
pursuant to tax sharing agreements among the Parent Borrower (and any such
parent) and the Subsidiaries on customary terms to the extent attributable
to
the ownership or operation of the Parent Borrower and the Subsidiaries,
(h) the
payment of customary fees and reasonable out of pocket costs to, and indemnities
provided on behalf of, directors, managers, consultants, officers and employees
of the Parent Borrower (or, to the extent attributable to the ownership
of the
Parent Borrower by such parent, any direct or indirect parent thereof)
and the
Subsidiaries in the ordinary course of business, and (i) transactions pursuant
to permitted agreements in existence on the Closing Date and set forth
on
Schedule 9.9
or any amendment thereto to the extent such an amendment
(together with any other amendment or supplemental agreements) is not adverse,
taken as a whole, to the Lenders in any material respect.
9.10.
End
of Fiscal Years; Fiscal Quarters
.
The Parent Borrower will, for financial reporting purposes, cause (a) each
of
its, and each of its Subsidiaries’, fiscal years to end on the Friday closest to
January 31 of each year and (b) each of its, and each of its Subsidiaries’,
fiscal quarters to end on dates consistent with such fiscal year-end and
the
Parent Borrower’s past practice;
provided
,
however
, that the
Parent Borrower may, upon written notice to the Administrative Agent change
the
financial reporting convention specified above to any other financial reporting
convention reasonably acceptable to the Administrative Agent, in which case
the
Parent Borrower and the Administrative Agent will, and are hereby authorized
by
the Lenders to, make any adjustments to this Agreement that are necessary
in
order to reflect such change in financial reporting.
9.11.
Additional
Borrowers, Guarantors and Grantors
.
Except as otherwise provided in
Section 10.1(j)
and subject to any
applicable limitations set forth in the Security Documents, the Parent Borrower
will cause each direct or indirect Domestic Subsidiary (excluding any Excluded
Subsidiary) formed or otherwise purchased or acquired after the date hereof
(including pursuant to a Permitted Acquisition) and each other Domestic
Subsidiary that ceases to constitute an Excluded Subsidiary to, within 30
days
from the date of such formation, acquisition or cessation, as applicable
(or
such longer period as the Administrative Agent may agree in its reasonable
discretion), execute (i) a joinder to this Agreement in order to become a
Subsidiary Borrower or the Guarantee to become a Guarantor under such Guarantee
and (ii) the
Security
Agreement in order to become a grantor under such Security Agreement or,
to the
extent reasonably requested by the Collateral Agent, enter into a new Security
Document substantially consistent with the analogous existing Security
Documents
and otherwise in form and substance reasonably satisfactory to such Collateral
Agent and take all other action reasonably requested by the Collateral
Agent to
grant a perfected security interest in its assets to substantially the
same
extent as created by the Credit Parties on the Closing Date (including
actions
required pursuant to
Section 9.14(b)
).
9.12.
[Reserved]
.
9.13.
Use
of Proceed
s
.
(a) The
Borrowers will use up to $432,300,000 of the proceeds of the Revolving Credit
Loans made on the Closing Date to effect, in part, the
Transactions.
(b)
After the Closing Date, the Borrowers
will use Letters of Credit, Revolving Credit Loans and Swingline Loans for
general corporate purposes (including Permitted Acquisitions).
9.14.
Further
Assurance
s
.
(a) The
Parent Borrower will, and will cause each other Credit Party to, execute
any and
all further documents, financing statements, agreements and instruments,
and
take all such further actions (including the filing and recording of financing
statements, fixture, filings, mortgages, deeds of trust and other documents)
that may be required under any applicable law, or that the Collateral Agent
or
the Required Lenders may reasonably request, in order to grant, preserve,
protect and perfect the validity and priority of the security interests created
or intended to be created by the applicable Security Documents, all at the
expense of the Parent Borrower and the Restricted Subsidiaries.
(b) The
Parent Borrower agrees that it will, or will cause its relevant Subsidiaries
to,
complete each of the actions described on
Schedule 9.14(b)
as soon
as commercially reasonable and by no later than the date set forth in
Schedule 9.14(b)
with respect to such action or such later date as the
Administrative Agent may reasonably agree.
9.15.
Cash
Management Systems.
(a) The
Credit Parties will establish and maintain the cash management systems described
below (the “
Cash Management Systems
”):
(i)
Within 60 calendar days after the Closing
Date (or such later date as the Administrative Agent may, in its reasonable
discretion, consent to in writing), (x) the Parent Borrower shall deliver
to the
Collateral Agent
Schedule 9.15(a)
which shall list as of the date such
Schedule is delivered all Single Store DDAs and all Consolidated Stores DDAs
that to the knowledge of the Parent Borrower are maintained by the Credit
Parties and (y) the Borrowers shall have established one or more concentration
accounts in the respective Borrower’s name (the “
Concentration
Accounts
”) that shall be designated as the Concentration Accounts and
listed on
Schedule 9.15(a)
.
(ii) The
Parent Borrower may maintain, in its name, one or more accounts (any such
account, a “
Disbursement Account
”) into which the
Administrative Agent shall, from time to time, deposit proceeds of Loans
made to
the Borrowers pursuant to
Section 2.1
for use by the Borrowers solely in
accordance with the provisions of
Section 9.13
(it being understood that
the Administrative Agent may also deposit or wire proceeds of Loans into
any
other account designated by the Parent Borrower at any time other than during
the continuance of any Cash Dominion Event). The Parent Borrower may
also maintain, in its name, one or more accounts that (x) do not contain
any
funds that are proceeds of Accounts or Inventory constituting Collateral,
(y)
are payroll accounts, trust or tax withholding accounts or (z) the Parent
Borrower designates in writing to the Administrative Agent as being the
“uncontrolled cash account” (the “
Designated Account
” ),
provided that (A) the amount on deposit in the Designated Account shall not
exceed at any time $25,000,000 and (B) so long as a Cash Dominion Event has
occurred and is continuing, the funds in the Designated Account shall not
be
funded from, or when withdrawn from the Designated Account, shall not be
replenished by, funds constituting proceeds of Collateral (each account under
clause (x)
through
(z)
, a “
Non-Controlled
Account
”). In addition to the account described in
clause
(z)
in the immediately preceding sentence, upon receipt of any proceeds
of
“Collateral” (as defined in the Term Loan Agreement) that does not constitute
Collateral hereunder, the Parent Borrower shall create and maintain an account
that it shall designate in writing to the Administrative Agent as the account,
the sole proceeds of which shall constitute such proceeds of such property
and
any additional property that constitutes “Collateral” (as defined in the Term
Loan Agreement) but not Collateral hereunder. Subject to the
Intercreditor Agreement, amounts deposited into such account shall be
distributed in accordance with the provisions set forth in this
Section
9.15
.
(iii) Within
60 calendar days after the Closing Date (or such later date as the
Administrative Agent may, in its reasonable discretion, consent to in writing),
each Credit Party shall deliver to the Collateral Agent for the Concentration
Accounts and any Disbursement Accounts, a tri-party blocked account agreement
or
lockbox account agreement between the Collateral Agent, the bank at which
each
such Concentration Account or Disbursement Account is maintained and the
relevant Credit Parties, in form and substance reasonably satisfactory to
the
Collateral Agent (each a “
Blocked Account
Agreement
”). Each such Blocked Account Agreement shall
provide, among other things, that at all times following the establishment
of
the Cash Management Systems pursuant to this
Section 9.15(a)
, upon the
occurrence and during the continuation of a Cash Dominion Event, the bank
at
which such Concentration Account or Disbursement Account is maintained shall,
upon receipt of notice from the Collateral Agent of such Cash Dominion Event,
commence the process of daily sweeps from such accounts into the Collection
Account (it being understood that any such daily sweep in respect of any
cash or
other amount in a Disbursement Account shall be subject to the rights of
the
applicable Credit Parties to transfer, apply or otherwise use the proceeds
of
any Loans hereunder for any purpose in accordance with
Section 9.13
by
moving any cash or other amount on deposit in any Disbursement Account out
of
such account for any such purpose);
provided
that any amounts in any
Concentration Accounts reasonably identified (with reasonably detailed written
support) to the Administrative Agent as not constituting Collateral will
be
distributed as directed by the Administrative Agent as requested by the
Parent
Borrower, including to one or more Non-Controlled
Accounts. Notwithstanding anything to the contrary herein or in any
other Credit Document, no cash or other amount that is disbursed or otherwise
transferred from the Disbursement Account (other than to the extent swept
back
into the Collection Account) shall constitute Collateral.
(iv)
Following the establishment of the Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers will, and will cause the other Credit
Parties to, (x) transfer from each Consolidated Stores DDA no less frequently
than on a daily basis the amount reasonably projected to be available in
such
Consolidated Stores DDA on the next succeeding Business Day (net of any reserves
maintained by the respective Credit Party in the ordinary course of business)
to
a Concentration Account and (y) transfer from each Single Store DDA on a
regular
basis the amount reasonably projected to be available in such Single Store
DDA
on the next succeeding Business Day (net of any reserves maintained by the
respective Credit Party in the ordinary course of business) to a Concentration
Account, provided that a transfer under this clause (y) shall in any event
be
made promptly after receipt by a Credit Party of the monthly account statement
from the depositary institution with which such Single Store DDA is maintained
(the “
Monthly Account Statement
”) and (z) not transfer any
funds out of any DDA except to a Concentration Account.
(v) Prior
to the occurrence of any Cash Dominion Event, the balance from time to time
standing to the credit of the Concentration Accounts shall be distributed
as
directed by the Parent Borrower, including to one or more Non-Controlled
Accounts. Notwithstanding anything to the contrary, cash held in
overnight deposit or investment accounts shall be deemed to be in a
Concentration Account overnight.
(vi) The
Parent Borrower, following the establishment of the Cash Management Systems
pursuant to
Section 9.15
and the delivery of
Schedule 9.15(a)
, may
amend
Schedule 9.15(a)
to add or replace a bank, any Concentration
Account, any DDA or any Disbursement Account;
provided
that (x) in the
case of a new or replacement Concentration Account or Disbursement Account
(A)
the Parent Borrower shall have given prior written notice to the Administrative
Agent of its intention to open such new or replacement account with the relevant
bank and (B) contemporaneously with the opening of a new Concentration Account
or Disbursement Account, the applicable Credit Party and such bank shall
have
executed and delivered to the Collateral Agent a Blocked Account Agreement
consistent with
Section 9.15(a)(iii)
and (y) in the case of a new or
replacement DDA (A) the Parent Borrower shall give written notice to the
Administrative Agent of the opening of such new or replacement account no
later
than five Business Days after the opening of such account and (B) the Credit
Parties shall comply with the obligations set forth in
Section
9.15(a)(iv)
.
(vii) All
amounts deposited in the Collection Account shall be deemed received by the
Administrative Agent in accordance with
Section 5
and shall be applied
(and allocated) by the Administrative Agent in accordance with
Section
5
. In no event shall any amount be so applied unless and until
such amount shall have been credited in immediately available funds to the
Collection Account.
(viii) The
Borrowers shall and shall cause their respective Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with
a
Borrower (each a “
Related Person
”) to (x) hold in trust for the
Administrative Agent, for the benefit of itself and Lenders, all checks,
cash
and other items of payment received by a Borrower or by a Related Person
on
behalf of a Borrower in respect of Accounts or Inventory that constitute
Collateral, and (y) following the establishment of the Cash Management Systems
pursuant to
Section 9.15(a)
, within three Business Days after receipt by
a Borrower or by a Related Person on behalf of a Borrower of any checks,
cash or
other items of payment in respect of Accounts that constitute Collateral,
deposit the same into a DDA or a Concentration Account. Each Borrower
and each Related Person acknowledges and agrees that all cash, checks or
other
items of payment constituting proceeds of Collateral are part of the
Collateral. Following the establishment of the Cash Management
Systems pursuant to
Section 9.15(a)
, all proceeds of the sale or other
disposition of any Collateral shall be deposited directly into a DDA or a
Concentration Account.
(b) Upon
the occurrence and during the continuance of a Cash Dominion Event following
the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
,
each Concentration Account shall at all times be under the sole dominion
and
control of the Collateral Agent. The Borrowers hereby acknowledge and
agree that during the continuance of a Cash Dominion Event following the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
,
(i) the Credit Parties have no right of withdrawal from the Concentration
Accounts (subject to the proviso to the second to last sentence of
Section
9.15(a)(iii)
), (ii) the funds on deposit in the Concentration Accounts shall
at all times be collateral security for all of the Obligations (other than
to
the extent such funds do not constitute proceeds of Accounts or Inventory
that
are otherwise Collateral) and (iii) the funds on deposit in the Concentration
Accounts shall be applied as provided in this Agreement. In the event
that, notwithstanding the provisions of this
Section 9.15
, any Borrower
receives or otherwise has dominion and control of any proceeds or collections
of
Accounts or Inventory that otherwise constitute Collateral outside of any
Concentration Account, any DDA and any Disbursement Account, such proceeds
and
collections shall be held in trust by such Borrower for the Collateral Agent
and
shall, not later than the Business Day after receipt thereof, be deposited
into
the Concentration Account or dealt with in such other fashion as such Borrower
may be instructed by the Collateral Agent.
(c)
(i)
Annexed hereto as
Schedule 9.15(c)
(such schedule to be delivered to the
Administrative Agent on or before the 60th calendar day after the Closing
Date
(or such later date as the Administration Agent may, in its reasonable
discretion, consent to in writing)) is a list as of the date such
Schedule
9.15(c)
is delivered, of all arrangements to which any Credit Party is a
party with respect to the payment to such Credit Party of the proceeds of
all
credit card charges for services or sales by such Credit Party.
(ii) Within
60 calendar days after the Closing Date (or such later date as the
Administrative Agent may, in its reasonable discretion, consent in writing),
each Borrower shall deliver to the Collateral Agent notifications (each,
a
“
Credit Card Notification
”) in form and substance reasonably
satisfactory to the Collateral Agent which have been executed on behalf of
each
Credit Party and addressed to such Credit
Party’s
credit card and debit card clearinghouses and processors listed on
Schedule
9.15(c)
.
(iii) Unless
consented to in writing by the Collateral Agent, after the delivery of
Schedule 9.15(c)
the Credit Parties shall not enter into any agreements
with credit card or debit card processors other than the ones expressly
contemplated herein unless contemporaneously therewith, a Credit Card
Notification, is executed and delivered to the Collateral Agent.
SECTION
10.
Negative
Covenants
The
Parent Borrower hereby covenants and agrees that on the Closing Date
(immediately after consummation of the Merger) and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated
and the Loans and Unpaid Drawings, together with interest, fees and all other
Obligations incurred hereunder (other than contingent indemnity obligations),
are paid in full:
10.1.
Limitation
on Indebtedness
.
The Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
provided
that the Parent Borrower and any Restricted
Subsidiary (other than a Restricted Foreign Subsidiary) may incur Indebtedness
(and all premiums (if any), interest (including post-petition interest),
fees,
expenses, charges and additional or contingent interest with regard to such
Indebtedness), if immediately before and after giving effect to such incurrence,
(x) no Default shall have occurred and be continuing and (y) the Parent
Borrower shall be in compliance, on a Pro Forma Basis, with the Senior Secured
Incurrence Test,
provided
,
further
, that Restricted Subsidiaries
that are not Guarantors may not incur Indebtedness pursuant to the foregoing
proviso in an aggregate principal amount outstanding at any time, when combined
with the total amount of Indebtedness incurred by Restricted Subsidiaries
that
are not Guarantors pursuant to
Section 10.1(d)
,
(j)
,
(k)
and
(n)
, exceeding $125,000,000.
Notwithstanding
the foregoing, the limitations set forth in the immediately preceding paragraph
shall not apply to any of the following items:
(a)
(x) Indebtedness arising under the Credit Documents and (y) Indebtedness
in an
aggregate principal amount not to exceed $2,300,000,000 at any time outstanding
under the Term Loan Facility (plus additional Indebtedness thereunder or
under
any amendment thereto, which does not exceed, in the aggregate, the difference
of (i) $325,000,000 less (ii) the aggregate principal amount of all New
Revolving Loans made pursuant to
Section 2.14
);
(b)
subject to compliance with
Section 10.5
, Indebtedness of the Parent
Borrower or any Restricted Subsidiary owed to the Parent Borrower or any
Restricted Subsidiary;
provided
that all such Indebtedness of any Credit
Party owed to any Person that is not a Credit Party shall be subordinated
to the
Obligations on terms reasonably satisfactory to the Administrative
Agent;
(c)
Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of
credit, warehouse receipt or similar facilities entered into in the ordinary
course of
business
(including in respect of workers compensation claims, health, disability
or
other employee benefits or property, casualty or liability insurance or
self-insurance or other Indebtedness with respect to reimbursement-type
obligations regarding workers compensation claims);
(d)
subject to compliance with
Section 10.5
, Guarantee Obligations incurred
by (i) Restricted Subsidiaries in respect of Indebtedness of the Parent
Borrower or other Restricted Subsidiaries that is permitted to be incurred under
this Agreement (except that a Restricted Subsidiary that is not a Credit
Party
may not, by virtue of this
Section 10.1(d)
guarantee Indebtedness that
such Restricted Subsidiary could not otherwise incur under this
Section
10.1
) and (ii) the Parent Borrower in respect of Indebtedness of
Restricted Subsidiaries that is permitted to be incurred under this Agreement;
provided
that (i) if the Indebtedness being guaranteed under this
Section 10.1(d)
is subordinated to the Obligations, such Guarantee
Obligations shall be subordinated to the Guarantee of the Obligations on
terms
at least as favorable to the Lenders as those contained in the subordination
of
such Indebtedness, (ii) no guarantee by any Restricted Subsidiary of the
Term
Loan Facility, Senior Notes, Senior Subordinated Notes or any Permitted
Additional Debt shall be permitted unless such Restricted Subsidiary shall
have
also provided a guarantee of the Obligations substantially on the terms set
forth in the Guarantee and (iii) the aggregate amount of Guarantee Obligations
incurred by Credit Parties under this
clause (d)
in respect of
obligations owed by Persons that are not Credit Parties and the aggregate
amount
of Guarantee Obligations incurred by Restricted Subsidiaries that are not
Guarantors under this
clause (d)
, when combined with the total amount of
Indebtedness incurred by Restricted Subsidiaries that are not Guarantors
pursuant to the proviso in the first paragraph of this
Section 10.1
and
Section 10.1
(j)
,
(k)
and
(n)
, shall not exceed
$125,000,000 at any time outstanding;
(e)
Guarantee Obligations (i) incurred in the ordinary course of business in
respect
of obligations of (or to) suppliers, customers, franchisees, lessors and
licensees or (ii) otherwise constituting Investments permitted by
Sections
10.5(d)
,
10.5(g)
,
10.5(i)
,
10.5(q)
,
10.5(r)
,
10.5(t)
and
10.5(v)
;
(f)
(i) Indebtedness (including
Indebtedness arising under Capital Leases) incurred within 270 days of the
acquisition, construction, repair, replacement, expansion or improvement
of
fixed or capital assets to finance the acquisition, construction, repair,
replacement expansion, or improvement of such fixed or capital assets,
(ii) Indebtedness arising under Capital Leases entered into in connection
with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital
Leases, other than Capital Leases in effect on the date hereof and Capital
Leases entered into pursuant to
subclauses (i)
and
(ii)
above,
provided
, that the aggregate amount of Indebtedness incurred
pursuant to this
clause (iii)
at any time outstanding shall not
exceed $75,000,000 and (iv) any modification, replacement, refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause
(i)
,
(ii)
or
(iii)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, the principal amount thereof
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses
incurred
in connection with such modification, replacement, refinancing, refunding,
renewal or extension;
(g)
Indebtedness outstanding on the date hereof listed on
Schedule 10.1
and any modification, replacement, refinancing, refunding, renewal or extension
thereof;
provided
that except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing,
refunding, renewal or extension, (x) the principal amount thereof does not
exceed the principal amount thereof outstanding immediately prior to such
modification, replacement, refinancing, refunding, renewal or extension except
by an amount equal to the unpaid accrued interest and premium thereon plus
the
reasonable amounts paid in respect of fees and expenses incurred in connection
with such modification, replacement, refinancing, refunding, renewal or
extension plus an amount equal to any existing commitment unutilized and
letters
of credit undrawn thereunder, (y) the direct and contingent obligors with
respect to such Indebtedness are not changed and (z) to the extent such
Indebtedness being modified, replaced, refinanced, refunded, renewed or extended
constitutes Indebtedness owed to the Borrower or any Restricted Subsidiary,
the
creditor with respect to such Indebtedness is not changed;
(h) Indebtedness
in respect of Hedge Agreements;
(i) Indebtedness
in respect of (x) the Senior Notes in an aggregate principal amount not to
exceed $1,175,000,000 and (y) the Senior Subordinated Notes in an aggregate
principal amount not to exceed $725,000,000
plus
the PIK Interest
Amount;
(j)
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person
that, in either case, becomes a Restricted Subsidiary (or is a Restricted
Subsidiary that survives a merger with such Person) or Indebtedness attaching
to
assets that are acquired by the Parent Borrower or any Restricted Subsidiary,
in
each case after the Closing Date as the result of a Permitted Acquisition;
provided
that
(x) such
Indebtedness existed at the time such Person became a Restricted Subsidiary
or
at the time such assets were acquired and, in each case, was not created
in
anticipation thereof, and
(y) such
Indebtedness is not guaranteed in any respect by the Parent Borrower or any
Restricted Subsidiary (other than by any such Person that so becomes a
Restricted Subsidiary or is the survivor of a merger with such Person or
any of
its Subsidiaries).
(ii) any
modification, replacement, refinancing, refunding, renewal or extension of
any
Indebtedness specified in
subclause (i)
above,
provided
that,
except to the extent otherwise expressly permitted hereunder, (x) the principal
amount of any such Indebtedness does not exceed the principal amount thereof
outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid accrued
interest and premium thereon plus the reasonable amounts paid in respect
of fees
and expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension plus an amount
equal
to
any existing commitment unutilized and letters of credit undrawn thereunder
and
(y) the direct and contingent obligors with respect to such Indebtedness
are not
changed; and
(iii)
the
aggregate amount of Indebtedness
incurred by Restricted Subsidiaries that are not Guarantors under this
clause
(j)
, when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Guarantors pursuant to the proviso in
the
first paragraph of this
Section 10.1
and
Section 10.1(d)
,
(k)
and
(n)
, shall not exceed $125,000,000 at any time
outstanding;
(k)
(i) Indebtedness of the Parent Borrower or any
Restricted Subsidiary incurred to finance a Permitted Acquisition;
(ii)
any modification, replacement,
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above,
provided
that, except to the extent otherwise
expressly permitted hereunder, (x) the principal amount of any such Indebtedness
does not exceed the principal amount thereof outstanding immediately prior
to
such modification, replacement, refinancing, refunding, renewal or extension
except by an amount equal to the unpaid accrued interest and premium thereon
plus the reasonable amounts paid in respect of fees and expenses incurred
in
connection with such modification, replacement, refinancing, refunding, renewal
or extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed; and
(iii)
notwithstanding the foregoing, Indebtedness may
only be incurred pursuant to this
clause (k)
to the extent that either
(A) both immediately before and after giving effect to such incurrence, the
Senior Secured Incurrence Test, on a Pro Forma Basis, shall be satisfied
or (B)
the Consolidated EBITDA to Consolidated Interest Expense Ratio, on a Pro
Forma
Basis, shall be greater than immediately prior to such incurrence;
provided
that Restricted Subsidiaries that are not Guarantors may not
incur Indebtedness pursuant to this
clause (k)
in an aggregate principal
amount, when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Guarantors pursuant to the proviso in
the
first paragraph of this
Section 10.1
and
Section 10.1(d)
,
(j)
and
(n)
, at any time outstanding in excess of $125,000,000
at
any time outstanding;
(l)
Indebtedness in respect of performance
bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and
similar obligations not in connection with money borrowed, in each case provided
in the ordinary course of business or consistent with past practice, including
those incurred to secure health, safety and environmental obligations in
the
ordinary course of business or consistent with past practice;
(m)
(i) Indebtedness incurred in connection with
any Permitted Sale Leaseback (
provided
that the Net Cash Proceeds thereof
are promptly applied to the prepayment of the Term Loans to the extent required
by
Section 5.2
of the Term Loan Agreement) and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above,
provided
that, except to the extent
otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal
amount
thereof outstanding immediately prior to such refinancing, refunding, renewal
or
extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed;
(n)
(i) additional Indebtedness and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified
in
subclause (i)
above;
provided
that the aggregate amount of
Indebtedness incurred and remaining outstanding pursuant to this
clause (n)
shall not at any time exceed the greater of (A)
$150,000,000 and (B) 2.00% of Consolidated Total Assets (determined at the
time
of incurrence);
provided
further that the aggregate amount of
Indebtedness incurred by Restricted Subsidiaries that are not Guarantors
under
this
clause (n)
, when combined with the total amount of Indebtedness
incurred by Restricted Subsidiaries that are not Guarantors pursuant to the
proviso in the first paragraph of this
Section 10.1
and
Section
10.1(d)
,
(j)
and
(k)
, shall not exceed $125,000,000 at any
time outstanding;
(o) Indebtedness
in respect of Permitted Additional Debt to the extent that the Net Cash Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Term Loans in accordance with
Section 5.2
of the Term Loan
Agreement (including any refinancing, refunding, renewal or extension of
any
such Indebtedness that, itself, constitutes Permitted Additional
Debt);
(p) Indebtedness
in respect of overdraft facilities, employee credit card programs, netting
services, automatic clearinghouse arrangements and other cash management
and
similar arrangements in the ordinary course of business;
(q) Indebtedness
incurred in the ordinary course of business in respect of obligations of
the
Parent Borrower or any Restricted Subsidiary to pay the deferred purchase
price
of goods or services or progress payments in connection with such goods and
services;
(r)
Indebtedness arising from agreements of the Parent
Borrower or any Restricted Subsidiary providing for indemnification, adjustment
of purchase price or similar obligations (including earn-outs), in each case
entered into in connection with Permitted Acquisitions, other Investments
and
the disposition of any business, assets or Stock permitted
hereunder;
(s) Indebtedness
of the Parent Borrower or any Restricted Subsidiary consisting of (i)
obligations to pay insurance premiums or (ii) take or pay obligations contained
in supply agreements, in each case arising in the ordinary course of
business;
(t)
Indebtedness representing deferred compensation to
employees of the Parent Borrower (or, to the extent such work is done for
the
Parent Borrower or its Subsidiaries, any direct or indirect parent thereof)
and
the Restricted Subsidiaries incurred in the ordinary course of
business;
(u) Indebtedness
consisting of promissory notes issued by any Borrower or any Guarantor to
current or former officers, managers, consultants, directors and employees
(or
their respective spouses, former spouses, successors, executors,
administrators,
heirs, legatees or distributees) to finance the purchase or redemption of
Stock
or Stock Equivalents of the Parent Borrower (or any direct or indirect parent
thereof) permitted by
Section 10.6(b)
;
(v) Indebtedness
consisting of obligations of the Parent Borrower and the Restricted Subsidiaries
under deferred compensation or other similar arrangements incurred by such
Person in connection with the Transactions and Permitted Acquisitions or
any
other Investment permitted hereunder;
(w) [Reserved];
(x)
additional Indebtedness of Foreign
Subsidiaries in an aggregate principal amount that at the time of incurrence
does not cause the aggregate principal amount of Indebtedness incurred in
reliance on this
clause (x)
outstanding at any time to exceed 5.00% of
Total Assets of the Foreign Subsidiaries, taken as a whole (determined at
the
time of incurrence);
(y) [Reserved];
(z)
Indebtedness of the Parent Borrower or any
Restricted Subsidiary to any joint venture (regardless of the form of legal
entity) that is not a Subsidiary arising in the ordinary course of business
in
connection with the cash management operations (including with respect to
intercompany self-insurance arrangements) of the Parent Borrower and its
Restricted Subsidiaries; and
(aa) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges, and additional or contingent interest on obligations described in
clauses (a)
through
(z)
above.
For
purposes of determining compliance with this
Section 10.1
, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness described in
clauses (a)
through
(
z)
above, the Borrower shall, in its sole discretion,
classify
and reclassify or later divide, classify or reclassify such item of Indebtedness
(or any portion thereof) and will only be required to include the amount
and
type of such Indebtedness in one or more of the above clauses;
provided
that (i) all Indebtedness outstanding under the Credit Documents will be
deemed
at all times to have been incurred in reliance only on the exception in
clause (a)
of
Section 10.1
, (ii) all Indebtedness outstanding
under the Term Loan Facility will be deemed at all times to have been incurred
in reliance only on the exception of
clause (a)
of
Section 10.1
and (iii) all Indebtedness outstanding under the Notes will be deemed at
all
times to have been incurred in reliance only on the exception of
clause
(i)
of
Section 10.1
.
10.2.
Limitation
on Liens
.
The Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
property or assets of any kind (real or personal, tangible or intangible)
of the
Parent Borrower or any Restricted Subsidiary, whether now owned or hereafter
acquired, except:
(a) Liens
arising under the Credit Documents;
(b) Liens
securing the “Obligations” (under and as defined in the Term Loan Agreement);
provided
that, to the extent that such Liens are on assets constituting
Collateral, such Liens are subject to the Intercreditor Agreement;
(c) [Reserved];
(d) Permitted
Liens;
(e)
(i) Liens securing Indebtedness permitted
pursuant to
Section 10.1(f)
,
provided
that (x) such Liens
attach concurrently with or within two hundred and seventy (270) days after
completion of the acquisition, construction, repair, replacement or improvement
(as applicable) of the property subject to such Liens and (y) such Liens
attach
at all times only to the assets so financed except (1) for accessions to
the
property financed with the proceeds of such Indebtedness and the proceeds
and
the products thereof and (2) that individual financings of equipment provided
by
one lender may be cross collateralized to other financings of equipment provided
by such lender, and (ii) Liens on the assets of a Restricted Subsidiary that
is
not a Credit Party securing Indebtedness permitted pursuant to
Section
10.1(n)
,
(p)
, or
(x)
;
(f)
Liens existing on the date hereof,
provided
that any Lien securing Indebtedness in excess of (x) $2,000,000
individually or (y) $5,000,000 in the aggregate (when taken together with
all
other Liens securing obligations outstanding in reliance on this clause (f)
that
are not listed on
Schedule 10.2
) shall only be permitted to the extent
such Lien is listed on
Schedule 10.2
;
(g) the
modification, replacement, extension or renewal of any Lien permitted by
clauses (a)
through
(f)
and
clauses (h)
and
(v)
of
this
Section 10.2
upon or in the same assets theretofore subject to such
Lien (or upon or in after-acquired property that is affixed or incorporated
into
the property covered by such Lien or any proceeds or products thereof) or
the
replacement, extension or renewal (without increase in the amount or change
in
any direct or contingent obligor except to the extent otherwise permitted
hereunder) of the Indebtedness secured thereby; to the extent such replacement,
extension or renewal is permitted by
Section 10.1
;
(h) Liens
existing on the assets of any Person that becomes a Restricted Subsidiary
(or is
a Restricted Subsidiary that survives a merger with such Person) pursuant
to a
Permitted Acquisition or other permitted Investment, or existing on assets
acquired after the Closing Date to the extent the Liens on such assets secure
Indebtedness permitted by
Section 10.1(j)
;
provided
that such
Liens (i) are not created or incurred in connection with, or in contemplation
of, such Person becoming such a Restricted Subsidiary or such assets being
acquired, (ii) attach at all times only to the same assets to which such
Liens
attached (and after-acquired property that is affixed or incorporated into
the
property covered by such Lien), and secure only the same Indebtedness or
obligations that such Liens secured, immediately prior to such Permitted
Acquisition and any modification, replacement, refinancing, refunding, renewal
or extension thereof permitted by
Section 10.1(j)
and (iii) to
the extent such Liens are attached to Accounts and Inventory, such Accounts
and
Inventory are held by an entity other than a Credit Party;
(i)
(i) Liens placed on the Stock and Stock
Equivalents of any Restricted Subsidiary acquired pursuant to a Permitted
Acquisition to secure Indebtedness incurred pursuant to
Section 10.1(k)
in connection with such Permitted Acquisition and
(ii) Liens placed upon the assets of such Restricted Subsidiary to secure a
guarantee by, or Indebtedness of, such Restricted Subsidiary of any Indebtedness
of the Parent Borrower or any other Restricted Subsidiary incurred pursuant
to
Section 10.1(k)
;
provided
that (x) the Parent Borrower shall
be in compliance, on a Pro Forma Basis, with the Senior Secured Incurrence
Test
at the time of creation of such Liens and (ii) at the time such Indebtedness
is
incurred, to the extent any Liens are created on Collateral, the holders
of such
Indebtedness shall have entered into intercreditor arrangements reasonably
satisfactory to the Administrative Agent providing that the Liens securing
such
Indebtedness shall rank junior to the Lien securing the
Obligations;
(j)
Liens securing Indebtedness or other
obligations (i) of the Parent Borrower or a Restricted Subsidiary in favor
of a
Credit Party and (ii) of any Restricted Subsidiary that is not a Credit Party
in
favor of any Restricted Subsidiary that is not a Credit Party;
(k) Liens
(i) of a collecting bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course
of business and (iii) in favor of a banking institution arising as a matter
of
law encumbering deposits (including the right of set-off);
(l)
Liens (i) on cash advances in favor of
the seller of any property to be acquired in an Investment permitted pursuant
to
Section 10.5
to be applied against the purchase price for such
Investment, and (ii) consisting of an agreement to sell, transfer, lease
or
otherwise dispose of any property in a transaction permitted under
Section
10.4
, in each case, solely to the extent such Investment or sale,
disposition, transfer or lease, as the case may be, would have been permitted
on
the date of the creation of such Lien;
(m) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale or purchase of goods entered into by the Parent Borrower
or any of the Restricted Subsidiaries in the ordinary course of business
permitted by this Agreement;
(n) Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under
Section 10.5
;
(o) Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;
(p) Liens
that are contractual rights of set-off (i) relating to the establishment
of
depository relations with banks not given in connection with the issuance
of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Parent Borrower or any Restricted Subsidiary to permit satisfaction of overdraft
or similar obligations incurred in the ordinary course of business of the
Parent
Borrower and the Restricted Subsidiaries or (iii) relating to
purchase
orders and other agreements entered into with customers of the Parent Borrower
or any Restricted Subsidiary in the ordinary course of
business;
(q) Liens
solely on any cash earnest money deposits made by the Parent Borrower or
any of
the Restricted Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;
(r)
Liens on insurance policies and the
proceeds thereof securing the financing of the premiums with respect
thereto;
(s) Liens
on specific items of inventory or other goods and the proceeds thereof securing
such Person’s obligations in respect of documentary letters of credit or
banker’s acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or
goods;
(t)
Liens securing letters of credit in a currency other than
Dollars permitted by
Section 10.1(c)
in an aggregate amount at any time
outstanding not to exceed $25,000,000;
(u) additional
Liens so long as the aggregate principal amount of the obligations secured
thereby at any time outstanding does not exceed $100,000,000;
provided
that, to the extent that (x) the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio is less than 3.50 to 1.00 and (y) the corporate
credit
rating of the Borrower by S&P is B or better and the corporate family rating
of the Borrower by Moody’s is B2 or better (in each case with no negative
outlook), then the amounts of obligations secured by additional Liens permitted
pursuant to this
clause (u)
shall not exceed the greater of $100,000,000
and 1.25% of Consolidated Total Assets (as determined at the date of
incurrence); and
(v) additional
Liens securing Indebtedness permitted under the first paragraph of
Section
10.1
,
provided
that to the extent such Liens are contemplated to be
on assets that constitute Collateral, at the time such Indebtedness is incurred,
the holders of such Indebtedness shall have entered into intercreditor
arrangements reasonably satisfactory to the Administrative Agent providing
that
the Liens securing such Indebtedness shall rank junior to the Lien securing
the
Obligations.
10.3.
Limitation
on Fundamental Changes
.
The Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries to, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of,
all or substantially all its business units, assets or other properties,
except
that:
(a) so
long as (i) no Default or Event of Default has occurred and is continuing
or
would result therefrom and (ii) both before and after giving effect to such
transaction the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
shall, on a Pro Forma Basis, be equal to or less than 4.25 to 1.00, any
Subsidiary of the Parent Borrower or any other Person may be merged, amalgamated
or consolidated with or into the Parent Borrower,
provided
that (A) the
Parent Borrower shall be the continuing or surviving corporation or (B) if
the Person formed by or surviving any such merger, amalgamation or consolidation
is not the Parent Borrower (such other Person, the “
Successor
Borrower
”),
(1) the
Successor Borrower shall be an entity organized or existing under the laws
of
the United States, any state thereof, the District of Columbia or any territory
thereof (such Parent Borrower or such Successor Borrower, as the case may
be,
being herein referred to as the “
Successor Parent Borrower
”),
(2) the Successor Borrower shall expressly assume all the obligations of
the
Borrower under this Agreement and the other Credit Documents pursuant to
a
supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (3) each Subsidiary Borrower and each Guarantor,
unless it is the other party to such merger or consolidation, shall have
by a
supplement to this Agreement or the Guarantee, as applicable, confirmed that
its
obligation hereunder or its guarantee thereunder, as applicable, shall apply
to
any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary
grantor and each Subsidiary pledgor, unless it is the other party to such
merger
or consolidation, shall have by a supplement to the Security Agreement affirmed
that its obligations thereunder shall apply to its Guarantee as reaffirmed
pursuant to
clause (3)
, (5) the Successor Parent Borrower shall have
delivered to the Administrative Agent (x) an officer’s certificate stating that
such merger or consolidation and such supplements preserve the enforceability
of
this Agreement and the perfection and priority of the Liens under the applicable
Security Documents and (y) if requested by the Administrative Agent, an opinion
of counsel to the effect that such merger or consolidation does not violate
this
Agreement or any other Credit Document and that the provisions set forth
in the
preceding
clauses (3)
through
(5)
preserve the enforceability of
the Guarantee and the perfection and priority of the Liens created under
the
applicable Security Documents (it being understood that if the foregoing
are
satisfied, the Successor Parent Borrower will succeed to, and be substituted
for, the Parent Borrower under this Agreement);
(b) so
long as no Default or Event of Default has occurred and is continuing or
would
result therefrom, any Subsidiary of the Parent Borrower or any other Person
(in
each case, other than the Parent Borrower) may be merged, amalgamated or
consolidated with or into any one or more Subsidiaries of the Parent Borrower,
provided
that (i) in the case of any merger, amalgamation or
consolidation involving one or more Restricted Subsidiaries, (A) a
Restricted Subsidiary shall be the continuing or surviving Person or
(B) the Parent Borrower shall take all steps necessary to cause the Person
formed by or surviving any such merger, amalgamation or consolidation (if
other
than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in
the
case of any merger, amalgamation or consolidation involving one or more
Subsidiary Borrowers or Guarantors, a Subsidiary Borrower or Guarantor, as
applicable, shall be the continuing or surviving Person or the Person formed
by
or surviving any such merger, amalgamation or consolidation (if other than
a
Subsidiary Borrower or Guarantor) shall execute (i) a joinder to this Agreement
to become a Subsidiary Borrower or supplement to the Guarantee Agreement
in
order to become a Guarantor and (ii) the relevant Security Documents in form
and
substance reasonably satisfactory to the Administrative Agent in order to
become
a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder
for
the benefit of the Secured Parties, (iii) no Default or Event of Default
has
occurred and is continuing or would result from the consummation of such
merger,
amalgamation or consolidation and (iv) Parent Borrower shall have delivered
to the Administrative Agent an officers’ certificate stating that such merger,
amalgamation or consolidation and any such supplements to any Security Document
preserve the enforceability of the Guarantees and the perfection and priority
of
the Liens under the applicable Security Documents;
(c) the
Merger may be consummated;
(d) any
Restricted Subsidiary that is not a Credit Party may sell, lease, transfer
or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or
otherwise) to the Parent Borrower or any other Restricted
Subsidiary;
(e) any
Subsidiary may sell, lease, transfer or otherwise dispose of any or all of
its
assets (upon voluntary liquidation or otherwise) to any Credit Party;
provided
that the consideration for any such disposition by any Person
other than a Guarantor shall not exceed the fair value of such
assets;
(f)
any Restricted Subsidiary may liquidate or dissolve if (i) the Parent
Borrower determines in good faith that such liquidation or dissolution is
in the
best interests of the Parent Borrower and is not materially disadvantageous
to
the Lenders and (ii) to the extent such Restricted Subsidiary is a Credit
Party,
any assets or business of such Restricted Subsidiary not otherwise disposed
of
or transferred in accordance with
Section 10.4
or
10.5
, in the
case of any such business, discontinued, shall be transferred to, or otherwise
owned or conducted by, a Credit Party after giving effect to such liquidation
or
dissolution; and
(g) to
the extent that no Default or Event of Default would result from the
consummation of such disposition, the Parent Borrower and the Restricted
Subsidiaries may consummate a merger, dissolution, liquidation, consolidation
or
disposition, the purpose of which is to effect a disposition permitted pursuant
to
Section 10.4
.
10.4.
Limitation
on Sale of Assets
.
The Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries to, (i) convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including receivables
and
leasehold interests), whether now owned or hereafter acquired or (ii) sell
to any Person (other than a Borrower or a Guarantor) any shares owned by
it of
any Restricted Subsidiary’s Stock and Stock Equivalents, except
that:
(a) the
Parent Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of (i) inventory, used or surplus equipment, vehicles and other assets
(other than accounts receivable) in the ordinary course of business, (ii)
Permitted Investments and Investment Grade Securities and (iii) assets for
the
purposes of charitable contributions or similar gifts to the extent such
assets
are not material to the ability of the Parent Borrower and its Restricted
Subsidiaries, taken as a whole, to conduct its business in the ordinary
course;
(b) the
Parent Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of assets (each of the foregoing, a “
Disposition
”),
excluding any Disposition of accounts receivable and inventory except in
connection with the Disposition of any business to which such accounts
receivable and inventory relate, for fair value,
provided
that (i) to the
extent required, the Net Cash Proceeds thereof to the Parent Borrower and
the
Restricted Subsidiaries are promptly applied to the prepayment of Term Loans
as
provided for in
Section 5.2
of the Term Loan Agreement, (ii) after
giving effect to any such sale, transfer or disposition, no Default or Event
of
Default shall have occurred and be continuing, (iii) with respect to any
Disposition pursuant to this
clause (b)
for a purchase price in excess of
$7,500,000, the Person making such Disposition shall receive not less than
75%
of such consideration in the form of cash or Permitted Investments;
provided
that for the purposes of this
subclause (iii)
the
following
shall be deemed to be cash: (A) any liabilities (as shown on the Parent
Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided
hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted
Subsidiary, other than liabilities that are by their terms (1) subordinated
to
the payment in cash of the Obligations or (2) not secured by the assets
that are
the subject of such Disposition, that are assumed by the transferee with
respect
to the applicable Disposition and for which the Parent Borrower and all
of the
Restricted Subsidiaries shall have been validly released by all applicable
creditors in writing, (B) any securities received by the Person making such
Disposition from the purchaser that are converted by such Person into cash
(to
the extent of the cash received) within 180 days following the closing
of the
applicable Disposition, (C) any Designated Non-Cash Consideration received
by the Person making such Disposition having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration received
pursuant to this
Section 10.4(b)
that is at that time outstanding, not in
excess of the greater of (x) $80,000,000 and (y) 1.0% of Consolidated Total
Assets at the time of the receipt of such Designated Non-Cash Consideration,
with the fair market value of each item of Designated Non-Cash Consideration
being measured at the time received and without giving effect to subsequent
changes in value, (iv) to the extent constituting proceeds of Collateral
subject
of a Disposition, any non-cash proceeds received are pledged to the Collateral
Agent; and (v) to the extent (A) the corporate credit rating of the Parent
Borrower by S&P is not B or better and the corporate family rating of the
Parent Borrower by Moody’s is not B2 or better (in each case with no negative
outlook) or (B) the Consolidated Senior Secured Debt to Consolidated EBITDA
Ratio is equal to or greater than 3.50 to 1.00, the aggregate consideration
for
all Dispositions made pursuant to this
clause (b)
shall not exceed the
greater of (1) $150,000,000 and (2) 2.5% of Consolidated Total Assets for
all
such transactions consummated after the Closing Date;
(c) (i)
the Parent Borrower and the Restricted Subsidiaries may make Dispositions
to the
Parent Borrower or any other Credit Party and (ii) any Restricted Subsidiary
that is not a Credit Party may make Dispositions to the Parent Borrower or
any
other Subsidiary,
provided
that with respect to any such Dispositions,
such sale, transfer or disposition shall be for fair value;
(d) excluding
any Disposition of accounts receivable except in connection with the Disposition
of any business to which such accounts receivable relate, Dispositions for
fair
value to the extent that (i) the aggregate consideration for all such
Dispositions consummated after the Closing Date does not exceed 3.5% of
Consolidated Total Assets and (ii) the Net Cash Proceeds of any such Disposition
are promptly applied to the prepayment of Term Loans as provided in
Section
5.2
of the Term Loan Agreement without giving effect to any reinvestment
rights under clause (iv) of the definition of “Net Cash Proceeds”;
(e) the
Parent Borrower and any Restricted Subsidiary may effect any transaction
permitted by
Section 10.3
,
10.5
or
10.6
;
(f) the
Parent Borrower and the Restricted Subsidiaries may lease, sublease, license
or
sublicense (on a non-exclusive basis with respect to any intellectual property)
real, personal or intellectual property in the ordinary course of
business;
(g) Dispositions
of property (including like-kind exchanges) to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are applied to the purchase
price of such replacement property, in each case under Section 1031 of the
Code
or otherwise;
(h) Dispositions
of property pursuant to Existing DC Sale Leaseback transactions;
(i)
Dispositions of Investments in joint ventures (regardless of
the form of legal entity) to the extent required by, or made pursuant to,
customary buy/sell arrangements between the joint venture parties set forth
in
joint venture arrangements and similar binding arrangements;
(j)
[Reserved];
(k) Dispositions
listed on
Schedule 10.4
(“
Scheduled
Dispositions
”);
(l) transfers
of property subject to a (i) Casualty Event or in connection with any
condemnation proceeding with respect to Collateral upon receipt of the Net
Cash
Proceeds of such Casualty Event or condemnation proceeding or (ii) in connection
with any casualty event or any condemnation proceeding, in each case with
respect to property that does not constitute Collateral;
(m) Dispositions
of accounts receivable in connection with the collection or compromise
thereof;
(n) the
unwinding of any Hedge Agreement;
(o) the
Parent Borrower and the Restricted Subsidiaries may make Dispositions (excluding
any Disposition of accounts receivable except in connection with the Disposition
of any business to which such accounts receivable relate), for fair value
to the
extent that (i) the aggregate consideration for all such Dispositions
consummated after the Closing Date does not exceed 3.5% of Consolidated Total
Assets and (ii) the Net Cash Proceeds of any such Disposition are promptly
applied to the prepayment of Term Loans as provided in
Section 5.2
of the
Term Loan Agreement without giving effect to any reinvestment rights under
clause (iv)
of the definition of “Net Cash Proceeds”; and
(p) Disposition
of any asset between or among the Parent Borrower and/or its Restricted
Subsidiaries as a substantially concurrent interim Disposition in connection
with a Disposition otherwise permitted pursuant to
clauses (a)
through
(o)
above.
10.5.
Limitation
on Investments
.
The Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries, to make any Investment except:
(a) extensions
of trade credit and asset purchases in the ordinary course of
business;
(b) Investments
that were Permitted Investments when such Investments were made or Investments
in Investment Grade Securities;
(c) loans
and advances to officers, directors and employees of the Parent Borrower
(or any
direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable
and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes (including employee payroll advances), (ii) in
connection with such Person’s purchase of Stock or Stock Equivalents of the
Parent Borrower (or any direct or indirect parent thereof;
provided
that,
to the extent such loans and advances are made in cash, the amount of such
loans
and advances used to acquire such Stock or Stock Equivalents shall be
contributed to the Parent Borrower in cash) and (iii) for purposes not described
in the foregoing sub
clauses (i)
and
(ii)
;
provided
that the
aggregate principal amount outstanding pursuant to
subclause (iii)
shall
not exceed $10,000,000;
(d) Investments
existing on, or made pursuant to legally binding written commitments in
existence on, the date hereof as set forth on
Schedule 10.5
and any
extensions, renewals or reinvestments thereof, so long as the amount of any
Investment made pursuant to this
clause (d)
is not increased at any
time above the amount of such Investment set forth on
Schedule
10.5
;
(e) Investments
received in connection with the bankruptcy or reorganization of suppliers
or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon foreclosure
with respect to any secured Investment or other transfer of title with respect
to any secured Investment;
(f)
Investments to the extent that payment for such
Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments
(i) (a) by the Parent Borrower or any Restricted Subsidiary in any Credit
Party,
(b) between or among Restricted Subsidiaries that are not Credit Parties,
and
(c) consisting of intercompany Investments incurred in the ordinary course
of
business in connection with the cash management operations (including with
respect to intercompany self-insurance arrangements) among the Parent Borrower
and the Restricted Subsidiaries; (ii) by Credit Parties in any Restricted
Subsidiary that is not a Credit Party, to the extent that the aggregate amount
of all Investments made on or after the Closing Date pursuant to this
subclause (ii)
, when valued at the fair market value (determined by the
Borrower acting in good faith) of each such Investment at the time each such
Investment was made, is not in excess of (w) $25,000,000 plus (x) the Applicable
Equity Amount at such time
plus
(y) to the extent the Consolidated Senior
Secured Debt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00,
both
before and after giving effect, on a Pro Forma Basis, to the making of such
Investment, the Applicable Amount at such time and (iii) by Credit Parties
in
any Restricted Subsidiary that is not a Credit Party so long as such Investment
is part of a series of simultaneous Investments by Restricted Subsidiaries
in
other Restricted Subsidiaries that result in the proceeds of the initial
Investment being invested in one or more Credit Parties;
(h) Investments
constituting Permitted Acquisitions;
(i)
Investments (including but not limited to (i)
minority Investments and Investments in Unrestricted Subsidiaries,
(ii) Investments in joint ventures (regardless of the form of legal entity)
or similar Persons that do not constitute Restricted Subsidiaries and
(iii) Investments in Subsidiaries that are not Credit Parties), in each
case valued at the fair market value (determined by the Parent Borrower acting
in good faith) of such Investment at the time each such Investment is made,
in
an aggregate amount pursuant to this
clause (i)
that, at the time each
such Investment is made, would not exceed the sum of (w) $100,000,000
plus
(x) the Applicable Equity Amount at such time
plus
(y) to the
extent the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
for the
Test Period is not greater than 4.25 to 1.00, both before and after giving
effect, on a Pro Forma Basis, to the making of such Investment, the Applicable
Amount at such time;
plus
(z) without duplication of any amount that
increased the JV Distribution Amount, an amount equal to any repayments,
interest, returns, profits, distributions, income and similar amounts actually
received in cash in respect of any such Investment (which amount referred
to in
this
subclause (z)
shall not exceed the amount of such Investment valued
at the fair market value of such Investment at the time such Investment was
made);
(j)
Investments constituting non-cash proceeds of
Dispositions of assets to the extent permitted by
Section 10.4
;
(k) Investments
made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower
or any direct or indirect parent thereof owned by any employee or any stock
ownership plan or key employee stock ownership plan of the Parent Borrower
(or
any direct or indirect parent thereof);
(l)
Investments consisting of dividends permitted under
Section 10.6
;
(m) loans
and advances to any direct or indirect parent of the Parent Borrower in lieu
of,
and not in excess of the amount of, dividends to the extent permitted to
be made
to such parent in accordance with
Section 10.6
;
(n) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes
receivable arising from the grant of trade credit in the ordinary course
of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to suppliers
in the ordinary course of business;
(o) Investments
in the ordinary course of business consisting of endorsements for collection
or
deposit and customary trade arrangements with customers consistent with past
practices;
(p) advances
of payroll payments to employees in the ordinary course of
business;
(q) Guarantee
Obligations of the Parent Borrower or any Restricted Subsidiary of leases
(other
than Capital Leases) or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of
business;
(r) Investments
held by a Person acquired (including by way of merger or consolidation) after
the Closing Date otherwise in accordance with this
Section 10.5
to
the extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger or consolidation and were in existence
on the date of such acquisition, merger or consolidation;
(s) Investments
in Hedge Agreements permitted by
Section 10.1
;
(t) [Reserved];
(u) Investments
in fixed income assets by ARIC consistent with customary practices of portfolio
management on the part of so-called “captive” insurance companies of comparable
size and scope of activities as ARIC;
(v) other
Investments, which, when aggregated with (i) all aggregate principal amounts
paid pursuant to
Section 10.7(a)
from the Closing Date and (ii) all loans
and advances made to any direct or indirect parent of the Borrower pursuant
to
Section 10.5(m)
in lieu of dividends permitted by
Section
10.6(c)
and (iii) all dividends paid pursuant to
Section 10.6(c)
,
shall not exceed an amount equal to (x) $150,000,000
plus
(y) the
Applicable Equity Amount at the time such dividends are paid
plus
(z) to
the extent the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio
is
not greater than 4.25 to 1.00, both before and after giving effect, on a
Pro
Forma Basis, to the making of such Investment, the Applicable Amount at the
time
such Investment is made;
(w) advances,
loans and extensions of credit made by the Parent Borrower or any Restricted
Subsidiary to the Parent Borrower or any other Restricted Subsidiary in respect
of Permitted Intercompany Indebtedness;
provided
that the aggregate
amount of advances, loans and extensions of credit made by Credit Parties
to
Restricted Subsidiaries that are not Credit Parties under this
clause (w)
shall not exceed $100,000,000 at any time outstanding;
(x) Investments
consisting of purchases and acquisitions of assets and services in the ordinary
course of business; and
(y) Investments
consisting of licensing of intellectual property pursuant to joint marketing
arrangements with other Persons in the ordinary course of business.
10.6.
Limitation on Dividends
.
The Parent Borrower will not declare or pay any dividends (other than dividends
payable solely in its Stock) or return any capital to its stockholders or
make
any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire, directly
or indirectly, for consideration, any shares of any class of its Stock or
Stock
Equivalents or the Stock or Stock Equivalents of any direct or indirect parent
now or hereafter outstanding, or set aside any funds for any of the foregoing
purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise
acquire for consideration (other than in connection with an Investment permitted
by
Section 10.5
) any Stock or Stock Equivalents of the Parent Borrower,
now or hereafter outstanding (all of the foregoing,
“
dividends
”),
provided
that, so long as no Default or
Event of Default exists or would exist after giving effect
thereto:
(a) the
Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) redeem in whole or in part any of its Stock or Stock
Equivalents for another class of its (or such parent’s) Stock or Stock
Equivalents or with proceeds from substantially concurrent equity contributions
or issuances of new Stock or Stock Equivalents,
provided
that such new
Stock or Stock Equivalents contain terms and provisions at least as advantageous
to the Lenders in all respects material to their interests as those contained
in
the Stock or Stock Equivalents redeemed thereby;
(b) the
Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock
Equivalents held by any present or former officer, director or employee (or
their respective Affiliates, estates or immediate family members) of the
Parent
Borrower and its Subsidiaries or any parent thereof, so long as such repurchase
is pursuant to, and in accordance with the terms of, management and/or employee
stock plans, stock subscription agreements or shareholder agreements or any
other management or employee benefit plan or agreement;
(c) the
Parent Borrower may pay dividends on its Stock or Stock Equivalents,
provided
that the amount of all such dividends paid from the Closing Date
pursuant to this
clause (c)
, when aggregated with (i) all aggregate
principal amounts paid pursuant to
Section 10.7(a)
from the Closing Date
and (ii) (A) all loans and advances made to any direct or indirect parent
of the
Parent Borrower pursuant to
Section 10.5(m)
in lieu of dividends
permitted by this
clause (c)
and (B) all Investments made pursuant to
Section 10.5(v)
, shall not exceed an amount equal to (x) $150,000,000
plus
(y) the Applicable Equity Amount at the time such
dividends are paid
plus
(z) to the extent the Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and
after giving effect, on a Pro Forma Basis, to the payment of such dividend,
the
Applicable Amount at the time such dividends are paid; and
(d) the
Parent Borrower may pay dividends:
(i) [Reserved];
(ii) the
proceeds of which shall be used to allow any direct or indirect parent of
the
Parent Borrower to pay (A) its operating expenses incurred in the ordinary
course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary
course
of business and attributable to the ownership or operations of the Parent
Borrower or its Subsidiaries, (B) any reasonable and customary indemnification
claims made by directors or officers of the Parent Borrower (or any parent
thereof) attributable to the ownership or operations of the Parent Borrower
and
its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable
by the Parent Borrower or any of its Restricted Subsidiaries and permitted
to be
paid by the Parent Borrower or such Restricted Subsidiary under this
Agreement;
(iii) the
proceeds of which shall be used to pay franchise and excise taxes and other
fees, taxes and expenses required to maintain the corporate existence of
any
direct or indirect parent of the Parent Borrower;
(iv) to
any direct or indirect parent of the Parent Borrower to finance any Investment
permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant
to
Section 10.5
;
provided
that (A) such dividend shall be made
substantially concurrently with the closing of such Investment, (B) such
parent
shall, immediately following the closing thereof, cause (1) all property
acquired (whether assets, Stock or Stock Equivalents) to be contributed to
the
Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent
permitted in
Section 10.5
) of the Person formed or acquired into the
Parent Borrower or any of its Restricted Subsidiaries and (C) Parent
Borrower shall comply with
Section 9.11
;
(v) the
proceeds of which shall be used to pay customary costs, fees and expenses
(other
than to Affiliates) related to any unsuccessful equity or debt offering or
acquisition payable by the Parent Borrower or its Restricted Subsidiaries
and
permitted to be paid by the Parent Borrower or its Restricted Subsidiaries
by
this Agreement; and
(vi) the
proceeds of which shall be used to pay customary salary, bonus and other
benefits payable to officers and employees of any direct or indirect parent
company of the Parent Borrower to the extent such salaries, bonuses and other
benefits are attributable to the ownership or operation of the Parent Borrower
and its Restricted Subsidiaries;
(e) [Reserved];
(f)
the Parent Borrower or any of the Restricted Subsidiaries may (i) pay cash
in
lieu of fractional shares in connection with any dividend, split or combination
thereof or any Permitted Acquisition and (ii) honor any conversion request
by a
holder of convertible Indebtedness and make cash payments in lieu of fractional
shares in connection with any such conversion and may make payments on
convertible Indebtedness in accordance with its terms;
(g) the
Parent Borrower may pay any dividend or distribution within 60 days after
the
date of declaration thereof, if at the date of declaration such payment would
have complied with the provisions of this Agreement;
(h) the
Parent Borrower may declare and pay dividends on the Parent Borrower’s common
stock following the first public offering of the Parent Borrower’s common stock
or the common stock of any of its direct or indirect parents after the Closing
Date, of up to 6%
per annum
of the net proceeds received by or
contributed to the Parent Borrower in or from any such public offering to
the
extent such net proceeds are not utilized in connection with other transactions
permitted by
Section 10.5
,
10.6
or
10.7
; and
(i)
the Parent Borrower may pay dividends in an amount equal to withholding or
similar Taxes payable or expected to be payable by any present or former
employee, director, manager or consultant (or their respective Affiliates,
estates or immediate family members) and any repurchases of Stock or Stock
Equivalents in consideration of such payments including deemed repurchases
in
connection with the exercise of stock options.
Notwithstanding
anything to the contrary contained in this
Section 10
(including
Section 10.5
and this
Section 10.6
), the Borrower will not, and
will not permit any of its Restricted
Subsidiaries
to, pay any cash dividend or make any cash distribution on or in respect
of the
Borrower’s Stock or Stock Equivalents or purchase or otherwise acquire for cash
any Stock or Stock Equivalents of the Borrower or any direct or indirect
parent
of the Borrower, for the purpose of paying any cash dividend or making
any cash
distribution to, or acquiring any Stock or Stock Equivalents of the Borrower
or
any direct or indirect parent of the Borrower for cash from the Sponsor,
or
guarantee any Indebtedness of any Affiliate of the Borrower for the purpose
of
paying such dividend, making such distribution or so acquiring such Stock
or
Stock Equivalents to or from the Sponsor, in each case by means of utilization
of the cumulative dividend and investment credit provided by the use of
the
Applicable Amount or the exceptions provided by
Section 10.5(i)
,
(m)
and
(v)
,
Section 10.6(c)
and
(g)
and
Section
10.7(a)
, unless at the time and after giving effect to such payment, the
Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to
or less
than 6.00 to 1.00.
10.7.
Limitations on Debt Payments and Amendments
.
(a)
The Parent Borrower will not, and will not permit any Restricted Subsidiary
to,
prepay, repurchase or redeem or otherwise defease any Senior Notes, Senior
Subordinated Notes or any other Permitted Additional Debt that is subordinated
to the Obligations other than as contemplated by
Section 10.1(i)
;
provided
,
however
, that so long as no Default or Event of Default
shall have occurred and be continuing at the date of such prepayment,
repurchase, redemption or other defeasance or would result therefrom, the
Parent
Borrower or any Restricted Subsidiary may prepay, repurchase or redeem Senior
Notes, Senior Subordinated Notes or such Permitted Additional Debt (i) in
an
aggregate amount from the Closing Date, when aggregated with (A) the aggregate
amount of dividends paid pursuant to
Section 10.6(c)
from the Closing
Date and (B) all (I) Investments made pursuant to
Section 10.5(v)
and
(II) loans and advances to any direct or indirect parent of the Parent Borrower
made pursuant to
Section 10.5(m)
, not in excess of the sum of (1)
$150,000,000
plus
(2) the Applicable Equity Amount at the time of such
prepayment, repurchase or redemption
plus
(3) to the extent the
Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is not greater
than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis,
to
the making of such prepayment, repurchase or redemption, the Applicable Amount
at the time of such prepayment, repurchase or redemption;
provided
that
to the extent that the Indebtedness being prepaid, repurchased, redeemed
or
otherwise defeased pursuant to this
clause (i)
comprises Senior
Subordinated Notes and such prepayment, repurchase or redemption is made
from
the proceeds of other Indebtedness incurred by the Borrower or its Restricted
Subsidiaries, such Indebtedness shall be subordinated to the Obligations
on
terms at least as favorable to the Lenders as the Senior Subordinated Notes;
(ii) in the case of Senior Notes, (A) with the proceeds of Senior Notes
described in clause (b) of the definition thereof
plus
(B) with
additional amounts to the extent that, with respect solely to this clause
(B),
the Consolidated Total Debt to Consolidated EBITDA Ratio is not greater than
4.00 to 1.00 both before and after giving effect, on a Pro Forma Basis, to
the
making of such prepayment, repurchase or redemption, (iii) in the case of
Senior Subordinated Notes, with the proceeds of Senior Subordinated Notes
described in
clause (b)
of the definition thereof, and (iv) in the case
of Permitted Additional Debt, with the proceeds of other Permitted Additional
Debt. For the avoidance of doubt, nothing in this
Section 10.7
shall restrict the making of any “AHYDO catch-up payment” in respect of the
Senior Subordinated Notes.
(b)
The Parent Borrower will not waive, amend, modify, terminate or release any
Senior Notes, Senior Subordinated Notes or Permitted Additional Debt that
is
subordinated to the Obligations or, in each case, the terms applicable thereto,
to the extent that any such waiver, amendment, modification, termination
or
release would be adverse to the Lenders in any material respect.
10.8.
Changes
in Business
.
he Parent Borrower and the Subsidiaries, taken as a whole, will not
fundamentally and substantively alter the character of their business, taken
as
a whole, from the business conducted by the Parent Borrower and the
Subsidiaries, taken as a whole, on the Closing Date and other business
activities incidental or reasonably related to any of the
foregoing.
SECTION
11.
Events of Default
Upon
the
occurrence of any of the following specified events (each an “
Event of
Default
”):
11.1.
Payments
.
Any Borrower shall (a) default in the payment when due of any principal of
the
Loans or (b) default, and such default shall continue for five or more days,
in
the payment when due of any interest on the Loans or any Fees or any Unpaid
Drawings, fees or of any other amounts owing hereunder or under any other
Credit
Document; or
11.2.
Representations, Etc.
Any
representation, warranty or statement made or deemed made by any Credit Party
herein or in any other Credit Document or any certificate delivered or required
to be delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
11.3.
Covenants
.
Any Credit Party shall:
(a) default
in the due performance or observance by it of any term, covenant or agreement
contained in
Section 9.1(d)
,
9.5
(solely with respect to the
Borrowers) or
Section 10
; or
(b) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in
Section 11.1
or
11.2
or
clause
(a)
or
(c)
of this
Section 11.3
) contained in this Agreement
or any Security Document and such default shall continue unremedied for a
period
of at least 30 days after receipt of written notice by the Parent Borrower
from
the Administrative Agent; or
(c) default
in the due performance or observance by it of any term, covenant or agreement
contained in
Section 9.15
(other than any such default resulting solely
from actions taken by one or more Persons not controlled directly or indirectly
by the Parent Borrower or such Person’s (or Persons’) failure to act in
accordance with the instructions of the Parent Borrower or the Administrative
Agent) and such default shall continue unremedied for a period of at least
fifteen Business Days after an Authorized Officer obtaining knowledge of
such
default; or
11.4.
Default Under Other Agreements
.
(a) The Parent Borrower or any of the Restricted Subsidiaries shall (i)
default in any payment with respect to any Indebtedness (other than the
Obligations) in excess of $50,000,000 in the aggregate, for the Parent Borrower
and such Restricted Subsidiaries, beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was created
or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness (other than Indebtedness in respect of
the
sale leaseback transactions set forth on
Schedule 8.3
) or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any
other event shall occur or condition exist (other than, with respect to
Indebtedness consisting of any Hedge Agreements, termination events or
equivalent events pursuant to the terms of such Hedge Agreements), the effect
of
which default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such
holder
or holders) to cause, any such Indebtedness to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its
stated maturity; or (b) without limiting the provisions of
clause (a)
above, any such Indebtedness (other than Indebtedness in
respect of the sale leaseback transactions set forth on
Schedule 8.3
)
shall be declared to be due and payable, or required to be prepaid other
than by
a regularly scheduled required prepayment or as a mandatory prepayment (and,
with respect to Indebtedness consisting of any Hedge Agreements, other than
due
to a termination event or equivalent event pursuant to the terms of such
Hedge
Agreements), prior to the stated maturity thereof,
provided
that this
clause (b)
shall not apply to secured Indebtedness that becomes due
as a
result of the voluntary sale or transfer of the property or assets securing
such
Indebtedness, if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness; or
11.5.
Bankruptcy, Etc
.
The
Parent Borrower or any Specified Subsidiary shall commence a voluntary case,
proceeding or action concerning itself under (a) Title 11 of the United
States Code entitled “Bankruptcy,” or (b) in the case of any Foreign
Subsidiary that is a Specified Subsidiary, any domestic or foreign law relating
to bankruptcy, judicial management, insolvency, reorganization, administration
or relief of debtors in effect in its jurisdiction of incorporation, in each
case as now or hereafter in effect, or any successor thereto (collectively,
the
“
Bankruptcy Code
”); or an involuntary case, proceeding or
action is commenced against the Parent Borrower or any Specified Subsidiary
and
the petition is not controverted within 30 days after commencement of the
case,
proceeding or action; or an involuntary case, proceeding or action is commenced
against the Parent Borrower or any Specified Subsidiary and the petition
is not
dismissed within 60 days after commencement of the case, proceeding or action;
or a custodian (as defined in the Bankruptcy Code), judicial manager, receiver,
receiver manager, trustee, administrator or similar person is appointed for,
or
takes charge of, all or substantially all of the property of the Parent Borrower
or any Specified Subsidiary; or the Parent Borrower or any Specified Subsidiary
commences any other voluntary proceeding or action under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency,
administration or liquidation or similar law of any jurisdiction whether
now or
hereafter in effect relating to the Parent Borrower or any Specified Subsidiary;
or there is commenced against the Parent Borrower or any Specified Subsidiary
any such proceeding or action that remains undismissed for a period of 60
days;
or the Parent Borrower or any Specified Subsidiary is adjudicated insolvent
or
bankrupt; or any order of relief or other order approving any such case or
proceeding or action is entered; or the Parent Borrower or any Specified
Subsidiary suffers
any
appointment of any custodian receiver, receiver manager, trustee, administrator
or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Parent Borrower
or any
Specified Subsidiary makes a general assignment for the benefit of creditors;
or
any corporate action is taken by the Parent Borrower or any Specified Subsidiary
for the purpose of effecting any of the foregoing; or
11.6.
ERISA
.
(a) Any Plan shall fail to satisfy the minimum funding standard required
for any plan year or part thereof or a waiver of such standard or extension
of
any amortization period is sought or granted under Section 412 of the Code;
any
Plan is or shall have been terminated or is the subject of termination
proceedings under ERISA (including the giving of written notice thereof);
an
event shall have occurred or a condition shall exist in either case entitling
the PBGC to terminate any Plan or to appoint a trustee to administer any
Plan
(including the giving of written notice thereof); any Plan shall have an
accumulated funding deficiency (whether or not waived); the Parent Borrower
or
any ERISA Affiliate has incurred or is likely to incur a liability to or
on
account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including
the
giving of written notice thereof); (b) there could result from any event
or
events set forth in
clause (a)
of this
Section 11.6
the imposition
of a lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a lien, security interest or liability;
and
(c) such lien, security interest or liability will or would be reasonably
likely
to have a Material Adverse Effect; or
11.7.
Guarantee
.
Any Guarantee provided by any Credit Party or any material provision thereof
shall cease to be in full force or effect (other than pursuant to the terms
hereof and thereof) or any such Guarantor thereunder or any other Credit
Party
shall deny or disaffirm in writing any such Guarantor’s obligations under the
Guarantee; or
11.8.
[
Reserved
]
.
11.9.
Security Agreement
.
The Security Agreement or any other Security Document pursuant to which the
assets of the Borrowers or any Subsidiary are pledged as Collateral or any
material provision thereof shall cease to be in full force or effect (other
than
pursuant to the terms hereof or thereof) or any grantor thereunder or any
other
Credit Party shall deny or disaffirm in writing any grantor’s obligations under
the Security Agreement or any other Security Document; or
11.10.
[Reserved
]
.
11.11.
Judgments
.
One or more judgments or decrees shall be entered against the Parent Borrower
or
any of the Restricted Subsidiaries involving a liability of $50,000,000 or
more
in the aggregate for all such judgments and decrees for the Parent Borrower
and
the Restricted Subsidiaries (to the extent not paid or covered by insurance
provided by a carrier not disputing coverage) and any such judgments or decrees
shall not have been satisfied, vacated, discharged or stayed or bonded pending
appeal within 60 days after the entry thereof; or
11.12.
Change of Control
.
A Change of Control shall occur; or
11.13.
Subordination
.
The Senior Subordinated Notes or any guarantees of the foregoing shall cease,
for any reason, to be validly subordinated to the Obligations or the
obligations
of the Credit Parties under the Guarantee and the other Security Documents,
as
the case may be, as provided in the Senior Subordinated Notes
Indenture;
then,
and
in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent may and, upon the written request
of the Required Lenders, shall, by written notice to the Parent Borrower,
take
any or all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrowers,
except as otherwise specifically provided for in this Agreement (
provided
that, if an Event of Default specified in
Section 11.5
shall occur with
respect to the Parent Borrower, the result that would occur upon the giving
of
written notice by the Administrative Agent as specified in
clauses (i)
,
(ii)
and
(iv)
below shall occur automatically without the giving
of any such notice): (i) declare the Total Revolving Credit Commitment and
Swingline Commitment terminated, whereupon the Revolving Credit Commitment
and
Swingline Commitment, if any, of each Lender or the Swingline Lender, as
the
case may be, shall forthwith terminate immediately and any Fees theretofore
accrued shall forthwith become due and payable without any other notice of
any
kind; (ii) declare the principal of and any accrued interest and fees in
respect of any or all Loans and any or all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of
which
are hereby waived by the Parent Borrower; (iii) terminate any Letter of
Credit that may be terminated in accordance with its terms; and/or (iv) direct
the Parent Borrower to pay (and the Parent Borrower agrees that upon receipt
of
such notice, or upon the occurrence of an Event of Default specified in
Section 11.5
with respect to the Parent Borrower, it will pay) to
the Administrative Agent at the Administrative Agent’s Office such additional
amounts of cash, to be held as security for the Parent Borrower’s respective
reimbursement obligations for Drawings that may subsequently occur thereunder,
equal to the aggregate Stated Amount of all Letters of Credit issued and
then
outstanding.
Any
amount received by the Administrative Agent or the Collateral Agent from
any
Credit Party (or from proceeds of any Collateral) following any acceleration
of
the Obligations under this Agreement or any Event of Default with respect
to the
Parent Borrower under
Section 11.5
shall be applied:
(i)
first
, to the payment of all reasonable and documented costs and
expenses incurred by the Administrative Agent or Collateral Agent in connection
with such collection or sale or otherwise in connection with any Credit
Document, including all court costs and the reasonable fees and expenses
of its
agents and legal counsel, the repayment of all advances made by the
Administrative Agent or the Collateral Agent hereunder or under any other
Credit
Document on behalf of any Credit Party and any other reasonable and documented
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Credit Document (other than in connection
with Secured Cash Management Agreements or Secured Hedge
Agreements);
(ii)
second
,
to the repayment of all Protective Advances;
(iii)
third
,
to the Secured Parties, an amount (x) equal to all Obligations (other than
in
connection with Secured Cash Management Agreements and Secured
Hedge
Agreements and other than amounts owed in connection with the Tranche A-1
Loans)
owing to them on the date of any distribution and (y) sufficient to Cash
Collateralize all Letters of Credit Outstanding on the date of any distribution
(other than Letters of Credit Outstanding in which the Tranche A-1 Lenders
participate on the date of such distribution), and, if such moneys shall
be
insufficient to pay such amounts in full and Cash Collateralize all Letters
of
Credit Outstanding (other than with respect to any amount constituting
a
participation therein on the date of such distribution by the Tranche A-1
Lender), then ratably (without priority of any one over any other) to such
Secured Parties in proportion to the unpaid amounts thereof and to Cash
Collateralize the Letters of Credit Outstanding;
(iv)
fourth
,
to the Secured Parties, an amount (x) equal to all Obligations owed in
connection with the Tranche A-1 Loans (other than in connection with Secured
Cash Management Agreements and Secured Hedge Agreements) owing to them on
the
date of any distribution and (y) sufficient to Cash Collateralize all Letters
of
Credit Outstanding in which the Tranche A-1 Lenders participate on the date
of
such distribution,
(v)
fifth
,
to any Cash Management Bank or Hedge Bank, an amount equal to all Obligations
in
respect of Secured Cash Management Agreements or Secured Hedge Agreements,
as
the case may be, owing to them on the date of any distribution; and
(vi)
sixth
,
any surplus then remaining shall be paid to the applicable Credit Parties
or
their successors or assigns or to whomsoever may be lawfully entitled to
receive
the same or as a court of competent jurisdiction may direct.
SECTION
12.
The Agents
.
12.1.
Appointment
.
(a) Each
Lender hereby irrevocably designates and appoints the Administrative Agent
as
the agent of such Lender under this Agreement and the other Credit Documents
and
irrevocably authorizes the Administrative Agent, in such capacity, to take
such
action on its behalf under the provisions of this Agreement and the other
Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and
the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The provisions of this
Section 12
(other
than
Section 12.1(c)
with respect to the Joint Lead Arrangers and
Section 12.9
with respect to the Parent Borrower) are solely for the
benefit of the Agents and the Lenders, and the Parent Borrower shall not
have
rights as third party beneficiary of any such
provision. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
(b) The
Administrative Agent, each Lender, the Swingline Lender and the Letter of
Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the
agent with respect to the Collateral, and each of the Administrative Agent,
each
Lender, the Swingline Lender and the Letter of Credit Issuer irrevocably
authorizes the Collateral Agent, in such capacity, to take such action on
its
behalf under the provisions of this Agreement and the other Credit Documents
and
to exercise such powers and perform such duties as are expressly delegated
to
the Collateral Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Collateral Agent shall not have any duties or
responsibilities except those expressly set forth herein, or any fiduciary
relationship with any of the Administrative Agent, the Lenders, the Swingline
Lender or the Letter of Credit Issuers, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the Collateral
Agent.
(c) Each
of the Syndication Agent, Joint Lead Arrangers and Bookrunners and the
Documentation Agent, each in its capacity as such, shall not have any
obligations, duties or responsibilities under this Agreement but shall be
entitled to all benefits of this
Section 12
.
12.2.
Delegation of Duties
.
The Administrative Agent and the Collateral Agent may each execute any of
its
duties under this Agreement and the other Credit Documents by or through
agents,
sub-agents, employees or attorneys-in-fact and shall be entitled to advice
of
counsel concerning all matters pertaining to such duties. Neither the
Administrative Agent nor the Collateral Agent shall be responsible for the
negligence or misconduct of any agents, sub-agents or attorneys-in-fact selected
by it in the absence of gross negligence or willful misconduct (as determined
in
the final judgment of a court of competent jurisdiction).
12.3.
Exculpatory Provisions
.
No Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Credit Document (except for its or such Person’s own
gross negligence or willful misconduct, as determined in the final judgment
of a
court of competent jurisdiction, in connection with its duties expressly
set
forth herein) or (b) responsible in any manner to any of the Lenders or any
participant for any recitals, statements, representations or warranties made
by
any of any Borrower, any Guarantor, any other Credit Party or any officer
thereof contained in this Agreement or any other Credit Document or in any
certificate, report, statement or other document referred to or provided
for in,
or received by such Agent under or in connection with, this Agreement or
any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document,
or
the perfection or priority of any Lien or security interest created or purported
to be created under the Security Documents, or for any failure of any Borrower,
any Guarantor or any other Credit Party to perform its obligations hereunder
or
thereunder. No Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of any Credit Party
or
any Affiliate thereof. The Collateral Agent shall not be under any
obligation to the Administrative Agent or any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained
in,
or
conditions of, this Agreement or any other Credit Document, or to inspect
the
properties, books or records of any Credit Party.
12.4.
Reliance by Agents
.
The Administrative Agent and the Collateral Agent shall be entitled to rely,
and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or instruction believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel
to
any Borrower), independent accountants and other experts selected by the
Administrative Agent or the Collateral Agent. The Administrative
Agent may deem and treat the Lender specified in the Register with respect
to
any amount owing hereunder as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been
filed with the Administrative Agent. The Administrative Agent and the
Collateral Agent shall be fully justified in failing or refusing to take
any
action under this Agreement or any other Credit Document unless it shall
first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. The Administrative
Agent and the Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Lenders, and such
request
and any action taken or failure to act pursuant thereto shall be binding
upon
all the Lenders and all future holders of the Loans;
provided
that the
Administrative Agent and Collateral Agent shall not be required to take any
action that, in its opinion or in the opinion of its counsel, may expose
it to
liability or that is contrary to any Credit Document or applicable
law. For purposes of determining compliance with the conditions
specified in
Section 6
and
7
on the Closing Date, each Lender that
has signed this Agreement shall be deemed to have consented to, approved
or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory
to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection
thereto.
12.5.
Notice of Default
.
Neither the Administrative Agent nor the Collateral Agent shall be deemed
to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent or Collateral Agent, as applicable,
has received notice from a Lender or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a
“notice of default”. In the event that the Administrative Agent
receives such a notice, it shall give notice thereof to the Lenders and the
Collateral Agent. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders,
provided
that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall
deem advisable in the best interests of the Lenders except to the extent
that
this Agreement requires that such action be taken only with the approval
of the
Required Lenders or each of the Lenders, as applicable.
12.6.
Non-Reliance on Administrative Agent, Collateral Agent and Other
Lenders
.
Each Lender expressly acknowledges that neither the Administrative Agent
nor the
Collateral
Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties
to it
and that no act by the Administrative Agent or Collateral Agent hereinafter
taken, including any review of the affairs of any Borrower, any Guarantor
or any
other Credit Party, shall be deemed to constitute any representation or
warranty
by the Administrative Agent or Collateral Agent to any Lender. Each
Lender represents to the Administrative Agent and the Collateral Agent
that it
has, independently and without reliance upon the Administrative Agent,
Collateral Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of each Borrower, Guarantor and other Credit
Party and made its own decision to make its Loans hereunder and enter into
this
Agreement. Each Lender also represents that it will, independently
and without reliance upon the Administrative Agent, Collateral Agent or
any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other
Credit Documents, and to make such investigation as it deems necessary
to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrowers, any Guarantor and any other Credit
Party. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent nor the Collateral Agent shall have any
duty or
responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of any Borrower, any Guarantor or any other
Credit
Party that may come into the possession of the Administrative Agent or
Collateral Agent any of their respective officers, directors, employees,
agents,
attorneys-in-fact or Affiliates.
12.7.
Indemnification
.
The Lenders agree to indemnify the Administrative Agent and the Collateral
Agent, each in its capacity as such (to the extent not reimbursed by the
Credit
Parties and without limiting the obligation of the Credit Parties to do so),
ratably according to their respective portions of the Revolving Loan Commitments
or Revolving Loans, as applicable, outstanding in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date
upon
which the Commitments shall have terminated and the Loans shall have been
paid
in full, ratably in accordance with their respective portions of the Total
Credit Exposure in effect immediately prior to such date), from and against
any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
that
may at any time occur (including at any time following the payment of the
Loans)
be imposed on, incurred by or asserted against the Administrative Agent or
the
Collateral Agent in any way relating to or arising out of the Commitments,
this
Agreement, any of the other Credit Documents or any documents contemplated
by or
referred to herein or therein or the transactions contemplated hereby or
thereby
or any action taken or omitted by the Administrative Agent or the Collateral
Agent under or in connection with any of the foregoing,
provided
that no
Lender shall be liable to the Administrative Agent or the Collateral Agent
for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Administrative Agent’s or the Collateral Agent’s, as applicable, gross
negligence or willful misconduct as determined by a final judgment of a court
of
competent jurisdiction;
provided
,
further
, that no action taken in
accordance with the directions of the Required Lenders (or such other number
or
percentage of the Lenders as shall
be
required by the Credit Documents) shall be deemed to constitute gross negligence
or willful misconduct for purposes of this
Section 12.7
. In the case of any investigation,
litigation or proceeding giving rise to any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time occur (including at any time
following the payment of the Loans), this
Section 12.7
applies
whether any such investigation, litigation or proceeding is brought by
any
Lender or any other Person. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent and the Collateral Agent
upon
demand for its ratable share of any costs or out-of-pocket expenses (including
attorneys’ fees) incurred by such Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice rendered in respect of rights or responsibilities under, this Agreement,
any other Credit Document, or any document contemplated by or referred
to
herein, to the extent that such Agent is not reimbursed for such expenses
by or
on behalf of the Borrowers,
provided
that such reimbursement by the
Lenders shall not affect each Borrower’s continuing reimbursement obligations
with respect thereto. If any indemnity furnished to any Agent for any
purpose shall, in the opinion of such Agent, be insufficient or become
impaired,
such Agent may call for additional indemnity and cease, or not commence,
to do
the acts indemnified against until such additional indemnity is furnished;
provided
, in no event shall this sentence require any Lender to indemnify
any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s
pro
rata
portion thereof; and
provided further
, this sentence shall not
be deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense
or
disbursement resulting from such Agent’s gross negligence or willful
misconduct. The agreements in this
Section 12.7
shall survive
the payment of the Loans and all other amounts payable
hereunder.
12.8.
Agents in its Individual Capacities
.
Each Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Borrower, any Guarantor,
and
any other Credit Party as though such Agent were not an Agent hereunder and
under the other Credit Documents. With respect to the Loans made by
it, each Agent shall have the same rights and powers under this Agreement
and
the other Credit Documents as any Lender and may exercise the same as though
it
were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent
in its individual capacity.
12.9.
Successor Agents
.
Each of the Administrative Agent and Collateral Agent may at any time give
notice of its resignation to the Lenders, the Letter of Credit Issuer and
the
Parent Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, subject to the consent of the Parent
Borrower (not to be unreasonably withheld or delayed) so long as no Default
under
Section 11.1
or
11.5
is continuing, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate
of
any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall
have
accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may on behalf of the Lenders
and the Letter of Credit Issuer, appoint a successor Agent meeting the
qualifications set forth above. Upon the acceptance of a successor’s
appointment as the Administrative Agent or Collateral Agent, as the case
may be,
hereunder, and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices,
as may
be necessary
or
desirable, or as the Required Lenders may request, in order to continue
the
perfection of the Liens granted or purported to be granted by the Security
Documents, such successor shall succeed to and become vested with all of
the
rights, powers, privileges and duties of the retiring (or retired) Agent,
and
the retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Credit Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the
Borrowers (following the effectiveness of such appointment) to such Agent
shall
be the same as those payable to its predecessor unless otherwise agreed
between
the Parent Borrower and such successor. After the retiring Agent’s
resignation hereunder and under the other Credit Documents, the provisions
of
this
Section 12
(including
12.7
) and
Section 13.5
shall
continue in effect for the benefit of such retiring Agent, its sub-agents
and
their respective Related Parties in respect of any actions taken or omitted
to
be taken by any of them while the retiring Agent was acting as an
Agent.
Any
resignation by The CIT Group/Business Credit, Inc. as Administrative Agent
pursuant to this Section shall also constitute its resignation as Letter
of
Credit Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring Letter of Credit Issuer and Swing Line Lender,
(b)
the retiring Letter of Credit Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the
other
Credit Documents, and (c) the successor Letter of Credit Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to
the
retiring Letter of Credit Issuer to effectively assume the obligations of
the
retiring Letter of Credit Issuer with respect to such Letters of
Credit.
12.10.
Withholding Tax
.
To the extent required by any applicable law, the Administrative Agent may
withhold from any interest payment to any Lender an amount equivalent to
any
applicable withholding tax. If the Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that
the
Administrative Agent did not properly withhold tax from amounts paid to or
for
the account of any Lender (because the appropriate form was not delivered,
was
not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent (to the extent that
the
Administrative Agent has not already been reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so) fully for all
amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred, including
legal expenses, allocated staff costs and any out of pocket
expenses.
12.11.
Intercreditor Agreement
.
The Collateral Agent is hereby authorized to enter into the Intercreditor
Agreement, and the parties hereto acknowledge that the Intercreditor Agreement
is binding upon them. Each Lender (a) hereby agrees that it will be
bound by and will take no actions contrary to the provisions of the
Intercreditor Agreement and (b) hereby authorizes and instructs the Collateral
Agent to enter into the Intercreditor Agreement and to subject the Liens
on the
Collateral securing the Obligations to the provisions thereof. In
addition, each Lender hereby authorizes the Collateral Agent to enter into
(i)
any amendments to the Intercreditor Agreement and (ii) any other intercreditor
arrangements, in the case of
clauses
(i)
and
(ii)
to the extent required to give effect to the establishment of
intercreditor rights and privileges as contemplated and required by
Section
10.2(i)
and
(v)
of this Agreement.
12.12.
Security Documents and Guarantee
.
(a) Agents under Security Documents and Guarantee. Each
Secured Party hereby further authorizes the Administrative Agent or Collateral
Agent, as applicable, on behalf of and for the benefit of Secured Parties,
to be
the agent for and representative of the Secured Parties with respect to the
Collateral and the Security Documents. Subject to Section 13.1,
without further written consent or authorization from any Secured Party,
the
Administrative Agent or Collateral Agent, as applicable may execute any
documents or instruments necessary to in connection with a sale or disposition
of assets permitted by this Agreement, (i) release any Lien encumbering any
item of Collateral that is the subject of such sale or other disposition
of
assets or with respect to which Required Lenders (or such other Lenders as
may
be required to give such consent under Section 13.1) have otherwise consented
or
(ii) release any Guarantor from the Guarantee or with respect to which Required
Lenders (or such other Lenders as may be required to give such consent under
Section 13.1) have otherwise consented.
(b)
Right
to Realize on Collateral and Enforce Guarantee
. Anything
contained in any of the Credit Documents to the contrary notwithstanding,
the
Borrowers, the Agents and each Secured Party hereby agree that (i) no Secured
Party shall have any right individually to realize upon any of the Collateral
or
to enforce the Guarantee, it being understood and agreed that all powers,
rights
and remedies hereunder may be exercised solely by the Administrative Agent,
on
behalf of the Secured Parties in accordance with the terms hereof and all
powers, rights and remedies under the Collateral Documents may be exercised
solely by the Collateral Agent, and (ii) in the event of a foreclosure by
the
Collateral Agent on any of the Collateral pursuant to a public or private
sale
or other disposition, the Collateral Agent or any Lender may be the purchaser
or
licensor of any or all of such Collateral at any such sale or other disposition
and the Collateral Agent, as agent for and representative of the Secured
Parties
(but not any Lender or Lenders in its or their respective individual capacities
unless Required Lenders shall otherwise agree in writing) shall be entitled,
for
the purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to
use
and apply any of the Obligations as a credit on account of the purchase price
for any collateral payable by the Collateral Agent at such sale or other
disposition.
SECTION
13.
Miscellaneous
13.1.
Amendments,Waivers
and Releases
.
Neither this Agreement nor any other Credit Document, nor any terms hereof
or
thereof, may be amended, supplemented or modified except in accordance with
the
provisions of this
Section 13.1
. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent
and/or the Collateral Agent may, from time to time, (a) enter into with the
relevant Credit Party or Credit Parties written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of
adding
any provisions to this Agreement or the other Credit Documents or changing
in
any manner the rights of the Lenders or of the Credit Parties hereunder or
thereunder or (b) waive in writing, on such terms and conditions as the
Required Lenders or the Administrative Agent and/or Collateral Agent, as
the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Credit Documents or any
Default
or Event of Default and its consequences;
provided
,
however
, that
each such waiver and each such amendment, supplement or modification shall
be
effective only in the specific instance and for the specific purpose for
which
given and
provided
,
further
, that no such waiver and no such
amendment, supplement or modification shall (i) forgive or reduce any portion
of
any Loan or extend the final scheduled maturity date of any Loan or reduce
the
stated rate (it being understood that any change to the definition of Average
Daily Excess Availability or in the component definitions thereof shall
not
constitute a reduction in the rate and only the consent of the Required
Lenders
shall be necessary to waive any obligation of the Borrowers to pay interest
at
the “default rate” or amend
Section 2.8(c)
), or forgive any portion, or
extend the date for the payment, of any interest or fee payable hereunder
(other
than as a result of waiving the applicability of any post-default increase
in
interest rates), or extend the final expiration date of any Lender’s Commitment
or extend the final expiration date of any Letter of Credit beyond the
L/C
Maturity Date, or increase the aggregate amount of the Commitments of any
Lender
(it being understood that the making of any Protective Advance, so long
as it is
in compliance with the provisions of
Section 2.1(d)
, shall not constitute
an increase of any Commitment of any Lender), or amend or modify any provisions
of
Section 5.3(a)
(with respect to the ratable allocation of any payments
only) and
13.8(a)
and
13.20
, or make any Loan, interest, fee or
other amount payable in any currency other than expressly provided herein,
in
each case without the written consent of each Lender directly and adversely
affected thereby, or (ii) amend, modify or waive any provision of this
Section 13.1
or reduce the percentages specified in the definitions
of the terms “Required Lenders” or “Supermajority Lenders”, consent to the
assignment or transfer by any Borrower of its rights and obligations under
any
Credit Document to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of application set forth in
Section 5.2(c)
or in the final paragraph of
Section 11.13
, in each
case without the written consent of each Lender directly and adversely
affected
thereby, or (iii) amend, modify or waive any provision of
Section 12
without the written consent of the then-current Administrative Agent and
Collateral Agent or any other former or current Agent to whom
Section 12
then applies in a manner that directly and adversely affects such Person,
or
(iv) amend, modify or waive any provision of
Section 3
with respect to
any Letter of Credit without the written consent of the Letter of Credit
Issuer,
or (v) amend, modify or waive any provisions hereof relating to Swingline
Loans without the written consent of the Swingline Lender in a manner that
directly and adversely affects such Person, or (vi) release all or substantially
all of the Guarantors under the Guarantees (except as expressly permitted
by the
Guarantees or this Agreement) without the prior written consent of each
Lender,
or (vii) release all or substantially all of the Collateral under the
Security Documents (except as expressly permitted by the Security Documents
or
this Agreement) without the prior written consent of each Lender, or (viii)
amend
Section 2.9
so as to permit Interest Period intervals greater than
six months without regard to availability to Lenders, without the written
consent of each Lender directly and adversely affected thereby, or
(ix) increase the advance rates above the levels in effect on the Closing
Date with respect to, or otherwise change the definition of the term “Applicable
Borrowing Base” or “Tranche A-1 Borrowing Base” or any component definition
thereof if as a result thereof the amounts available to be borrowed by
the
Parent Borrower as Tranche A-1 Loans would be increased, or amend any provision
of Section 2.3(f) or 3.1(e), in each case without the written consent of
the
Supermajority Tranche A-1 Lenders,
provided
that the foregoing shall not
limit the discretion of the Administrative Agent to change, establish or
eliminate any Reserves or otherwise exercise its Permitted Discretion without
the consent of the Supermajority Tranche A-1 Lenders, or (x)
increase
the advance rates above the levels in effect on the Closing Date with respect
to, or otherwise change the definition of the term “Applicable Borrowing Base”
or “Tranche A Borrowing Base” or Tranche A-1 Borrowing Base or any component
definition thereof if as a result thereof the amounts available to be borrowed
by the Parent Borrower as Tranche A Loans would be increased, without the
written consent of the Tranche A Supermajority Lenders,
provided
that the
foregoing shall not limit the discretion of the Administrative Agent to
change,
establish or eliminate any Reserves or otherwise exercise its Permitted
Discretion without the consent of any such Tranche A Supermajority Lenders,
or
(xi) affect the rights or duties of, or any fees or other amounts payable
to,
any Agent under this Agreement or any other Credit Document without the
prior
written consent of such Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
affected Lenders and shall be binding upon the Borrowers, such Lenders,
the
Administrative Agent and all future holders of the affected Loans. In
the case of any waiver, the Borrowers, the Lenders and the Administrative
Agent
shall be restored to their former positions and rights hereunder and under
the
other Credit Documents, and any Default or Event of Default waived shall
be
deemed to be cured and not continuing, it being understood that no such
waiver
shall extend to any subsequent or other Default or Event of Default or
impair
any right consequent thereon. In connection with the foregoing
provisions, the Administrative Agent may, but shall have no obligations
to, with
the concurrence of any Lender, execute amendments, modifications, waivers
or
consents on behalf of such Lender.
Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right
to
approve or disapprove any amendment, waiver or consent hereunder, except
that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender (it being understood that any Commitments or Loans
held
or deemed held by any Defaulting Lender shall be excluded for a vote of the
Lenders hereunder requiring any consent of the Lenders).
Notwithstanding
the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Parent Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from
time to
time outstanding thereunder and the accrued interest and fees in respect
thereof
to share ratably in the benefits of this Agreement and the other Credit
Documents with the Revolving Credit Loans and the accrued interest and fees
in
respect thereof and (b) to include appropriately the Lenders holding such
credit
facilities in any determination of the Required Lenders and other definitions
related to such new Revolving Credit Loans.
The
Lenders hereby irrevocably agree that the Liens granted to the Collateral
Agent
by the Credit Parties on any Collateral shall be automatically released
(i) in full, upon the termination of this Agreement and the payment of all
Obligations hereunder (except for contingent indemnification obligations
in
respect of which a claim has not yet been made), (ii) upon the sale or
other disposition of such Collateral (including as part of or in connection
with
any other sale or other disposition permitted hereunder) to any Person other
than another Credit Party, to the extent such sale or other disposition is
made
in compliance with the terms of this Agreement (and the Collateral Agent
may
rely conclusively on a certificate to that effect
provided
to it by any Credit Party upon its reasonable request without further inquiry),
(iii) to the extent such Collateral is comprised of property leased to a
Credit Party, upon termination (in accordance with the terms of this Agreement)
or expiration of such lease, (iv) if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders (or such other
percentage of the Lenders whose consent may be required in accordance with
this
Section 13.1
), (v) to the extent the property constituting such
Collateral is owned by any Subsidiary Borrower or Guarantor, upon the release
of
such Subsidiary Borrower or Guarantor from its obligations hereunder or
under
the applicable Guarantee, as applicable, (in accordance with the following
sentence) and (vi) as required to effect any sale or other disposition of
Collateral in connection with any exercise of remedies of the Collateral
Agent
pursuant to the Collateral Documents. Any such release shall not in
any manner discharge, affect or impair the Obligations or any Liens (other
than
those being released) upon (or obligations (other than those being released)
of
the Credit Parties in respect of) all interests retained by the Credit
Parties,
including the proceeds of any sale, all of which shall continue to constitute
part of the Collateral except to the extent otherwise released in accordance
with the provisions of the Credit Documents. Additionally, the
Lenders hereby irrevocably agree that the Subsidiary Borrowers and Guarantors
shall be released from the Obligations or Guarantees, as applicable, upon
consummation of any transaction resulting in such Subsidiary ceasing to
constitute a Restricted Subsidiary. The Lenders hereby authorize the
Administrative Agent and the Collateral Agent, as applicable, to execute
and
deliver any instruments, documents, and agreements necessary or desirable
to
evidence and confirm the release of any Subsidiary Borrower or Guarantor
or
Collateral pursuant to the foregoing provisions of this paragraph, all
without
the further consent or joinder of any Lender.
13.2.
Notices
.
Unless otherwise expressly provided herein, all notices and other communications
provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile transmission). All such written notices shall
be mailed, faxed or delivered to the applicable address, facsimile number
or
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(a) if
to the Parent Borrower, any Subsidiary Borrower, the Administrative Agent,
the
Collateral Agent, the Letter of Credit Issuer or the Swingline Lender, to
the
address, facsimile number, electronic mail address or telephone number specified
for such Person on
Schedule 13.2
or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated
by
such party in a notice to the other parties; and
(b) if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number
as
shall be designated by such party in a notice to the Parent Borrower, the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and
the
Swingline Lender.
All
such
notices and other communications shall be deemed to be given or made upon
the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A)
if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, three Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail,
when
delivered;
provided
that notices and other communications to the
Administrative Agent or the Lenders pursuant to
Sections 2.3
,
2.6
,
2.9
,
4.2
and
5.1
shall not be effective until
received.
13.3.
No Waiver; Cumulative Remedies
.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent, the Collateral Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers
and
privileges provided by law.
13.4.
Survival of Representations and Warranties
.
All representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or
in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
13.5.
Payment of Expenses
;
Indemnification
.
The Borrowers agree (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution and delivery of, and any amendment, supplement
or
modification to, this Agreement and the other Credit Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and
administration of the transactions contemplated hereby and thereby, including
the reasonable documented costs, fees and expenses associated with the initial
collateral appraisal and field examination and all subsequent appraisals,
examinations or update to the extent set forth in
Section 9.2(b)
and the
reasonable fees, disbursements and other charges of Latham & Watkins LLP and
one counsel in each relevant local jurisdiction, (b) to pay or reimburse
each
Agent for all its reasonable out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including
the reasonable fees, disbursements and other charges of one counsel to the
Administrative Agent, Collateral Agent and the other Agents (unless there
is an
actual or perceived conflict of interest in which case each such Person may
retain its own counsel), (c) to pay, indemnify, and hold harmless each Lender
and Agent from, any and all recording and filing fees and (d) to pay, indemnify,
and hold harmless each Lender and Agent and their respective Affiliates,
directors, officers, employees, and agents from and against any and all other
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable and documented fees, disbursements and other
charges of one primary counsel and one local counsel in each relevant
jurisdiction to such indemnified Persons (unless there is an actual or perceived
conflict of interest or the availability of different claims or defenses
in
which case each such Person may retain its own counsel), related to the
Transactions (including, without limitation, the Merger) or, with respect
to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law (other than
by such
indemnified person or any of its Related Parties(other than any trustee or
advisor)) or to any actual or alleged presence, release or threatened release
of
Hazardous Materials involving or attributable to the operations of the Parent
Borrower, any of its Subsidiaries or any of the Real Estate (all the foregoing
in this
clause
(d)
,
collectively, the “
indemnified liabilities
”),
provided
that the Borrowers shall have no obligation hereunder to any Agent or any
Lender
or any of their respective Related Parties with respect to indemnified
liabilities to the extent it has been determined by a final non-appealable
judgment of a court of competent jurisdiction to have resulted from (i) the
gross negligence, bad faith or willful misconduct of the party to be indemnified
or any of its Related Parties (other than any trustee or advisor) or
(ii) any material breach of any Credit Document by the party to be
indemnified. No Person entitled to indemnification under
clause
(d)
of this
Section 13.5
shall be liable for any damages arising from
the use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in connection
with
this Agreement, nor shall any such Person have any liability for any special,
punitive, indirect or consequential damages relating to this Agreement
or any
other Credit Document or arising out of its activities in connection herewith
or
therewith (whether before or after the Closing Date). In the case of
an investigation, litigation or other proceeding to which the indemnity
in this
Section 13.5
applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Credit
Party,
its directors, stockholders or creditors or any other Person, whether or
not any
Person entitled to indemnification under
clause (d)
of this
Section
13.5
is otherwise a party thereto. All amounts payable under this
Section 13.5
shall be paid within ten Business Days of receipt by the
Parent Borrower of an invoice relating thereto setting forth such expense
in
reasonable retail. The agreements in this
Section 13.5
shall
survive repayment of the Loans and all other amounts payable
hereunder.
13.6.
Successors and Assigns; Participations and Assignments
.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted
hereby
(including any Affiliate of the Letter of Credit Issuer that issues any Letter
of Credit), except that (i) except as expressly permitted by
Section
10.3
, no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void) and (ii) no Lender may assign
or
otherwise transfer its rights or obligations hereunder except in accordance
with
this
Section 13.6
. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including
any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit),
Participants (to the extent provided in
clause (c)
of this
Section
13.6
) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Collateral Agent, the Letter of
Credit
Issuer and the Lenders and each other Person entitled to indemnification
under
Section 13.5
) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b)
(i) Subject to the conditions set forth in
clause
(b)(ii)
below, any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans (including participations
in
L/C Obligations or Swingline Loans) at the time owing to it) with the prior
written consent (such consent not be unreasonably withheld or delayed; it
being
understood that, without limitation, the Parent Borrower shall have the right
to
withhold or delay its consent to any assignment solely if, in order for such
assignment to comply with applicable law, any
Borrower
would be required to obtain the consent of, or make any filing or registration
with, any Governmental Authority) of:
(A)
the Parent Borrower,
provided
that no consent of the Parent
Borrower shall be required for an assignment (1) to a Lender, an Affiliate
of a
Lender or an Approved Fund or, (2) if an Event of Default under
Section
11.1
or
Section 11.5
has occurred and is continuing, any other
assignee or (3) to a Person not more than 14 days following the Closing Date,
to
the extent the Parent Borrower has previously consented to an allocation
of
Revolving Credit Loan Commitment or Revolving Credit Loans in an amount greater
than or equal to the amount assigned to a Person in such time period;
and
(B)
the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), the Swingline Lender or the applicable
Letter
of Credit Issuer.
Notwithstanding
the foregoing, no such assignment shall be made to a natural
person.
(ii)
Assignments shall be subject to the following additional
conditions:
(A)
except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of
the assigning Lender’s Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 and increments of $1,000,000 in excess thereof, or, unless each
of
the Parent Borrower and the Administrative Agent otherwise consents (which
consents shall not be unreasonably withheld or delayed),
provided
that no
such consent of the Parent Borrower shall be required if an Event of Default
under
Section 11.1
or
Section 11.5
has occurred and is continuing;
provided
further
that contemporaneous assignments to a single
assignee made by Affiliates of Lenders and related Approved Funds shall be
aggregated for purposes of meeting the minimum assignment amount requirements
stated above;
(B)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement,
provided
that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning Lender’s
rights and obligations in respect of one Class of Commitments or
Loans;
(C)
The parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee in the amount of $3,500;
provided
that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment; and
(D)
the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an administrative questionnaire in a form approved
by
the Administrative Agent (the “
Administrative
Questionnaire
”).
(iii)
Subject to acceptance and recording thereof pursuant to
clause (b)(iv)
of this
Section 13.6
, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of
Sections 2.10
,
2.11
,
3.5
,
5.4
and
13.5
). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
Section 13.6
shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with
clause (c)
of this
Section 13.6
.
(iv)
The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent’s Office a
copy of each Assignment and Acceptance delivered to it and a register for
the
recordation of the names and addresses of the Lenders, and the Commitments
of,
and principal amount of the Loans and any payment made by the Letter of Credit
Issuer under any Letter of Credit owing to, each Lender pursuant to the terms
hereof from time to time (the “
Register
”). Further,
each Register shall contain the name and address of the Administrative Agent
and
the lending office through which each such Person acts under this
Agreement. The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent, the Collateral Agent, the Letter of
Credit
Issuer and the Lenders shall treat each Person whose name is recorded in
the
Register pursuant to the terms hereof as a Lender hereunder for all purposes
of
this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrowers, the Collateral Agent,
the
Letter of Credit Issuer and any Lender, at any reasonable time and from time
to
time upon reasonable prior notice.
(v)
Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in
clause (b)
of this
Section 13.6
(unless waived)
and any written consent to such assignment required by
clause (b)
of this
Section 13.6
, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the
Register.
(c)
(i) Any Lender may, without the consent of any
Borrower, any Administrative Agent, the Letter of Credit Issuer or the Swingline
Lender, sell participations to one or more banks or other entities (each,
a
“
Participant
”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it),
provided
that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain
solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrowers, the Administrative Agent, the Letter of Credit Issuer
and
the other Lenders shall continue to deal solely and directly with such Lender
in
connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole
right to enforce this Agreement and to approve any amendment,
modification
or waiver of any provision of this Agreement or any other Credit Document,
provided
that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in
clauses (i)
or
(iv)
of the
proviso to
Section 13.1
that affects such
Participant. Subject to
clause (c)(ii)
of this
Section
13.6
, the Borrowers agree that each Participant shall be entitled to the
benefits of
Sections 2.10
,
2.11
and
5.4
to the same extent
as if it were a Lender, and
provided
that such Participant agrees to be
subject to the requirements of those Sections as though it were a Lender
and had
acquired its interest by assignment pursuant to
clause (b)
of this
Section 13.6
. To the extent permitted by law, each Participant
also shall be entitled to the benefits of
Section 13.8(b)
as though
it were a Lender,
provided
such Participant agrees to be subject to
Section 13.8(a)
as though it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under
Section 2.10
,
2.11
or
5.4
than the applicable Lender
would have been entitled to receive with respect to the participation sold
to
such Participant, unless the sale of the participation to such Participant
is
made with the Parent Borrower’s prior written consent (which consent shall not
be unreasonably withheld).
(d) Any
Lender may, without the consent of any Borrower or the Administrative Agent,
at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
any
pledge or assignment to secure obligations to a Federal Reserve Bank, and
this
Section 13.6
shall not apply to any such pledge or assignment of a
security interest,
provided
that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto. In order to facilitate such pledge or assignment or for any
other reason, the Borrowers hereby agree that, upon request of any Lender
at any
time and from time to time after any Borrower has made its initial borrowing
hereunder, each Borrower shall provide to such Lender, at such Borrower’s own
expense, a promissory note, substantially in the form of
Exhibit K
,
evidencing the Revolving Credit Loans and Swingline Loans, respectively,
owing
to such Lender.
(e)
Subject to
Section 13.16
, the Borrowers
authorize each Lender to disclose to any Participant, secured creditor of
such
Lender or assignee (each, a “
Transferee
”) and any prospective
Transferee any and all financial information in such Lender’s possession
concerning a Borrower and its Affiliates that has been delivered to such
Lender
by or on behalf of such Borrower and its Affiliates pursuant to this Agreement
or that has been delivered to such Lender by or on behalf of such Borrower
and
its Affiliates in connection with such Lender’s credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this
Agreement.
(f)
The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Acceptance shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for
in
any applicable law, including the Federal Electronic Signatures in Global
and
National Commerce Act, the New York State Electronic Signatures and Records
Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(g)
SPV
Lender
. Notwithstanding anything to the contrary contained
herein, any Lender (a “
Granting Lender
”) may grant to a special
purpose funding vehicle (a “
SPV
”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and
the Parent Borrower, the option to provide to the Borrowers all or any part
of
any Loan that such Granting Lender would otherwise be obligated to make the
Borrowers pursuant to this Agreement;
provided
that (i) nothing herein
shall constitute a commitment by any SPV to make any Loan and (ii) if an
SPV
elects not to exercise such option or otherwise fails to provide all or any
part
of such Loan, the Granting Lender shall be obligated to make such Loan pursuant
to the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as
if,
such Loan were made by such Granting Lender. Each party hereto hereby
agrees that no SPV shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with
the
Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in
full
of all outstanding commercial paper or other senior indebtedness of any SPV,
it
shall not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary
contained in this
Section 13.6
, any SPV may (i) with notice to, but
without the prior written consent of, the Parent Borrower and the Administrative
Agent and without paying any processing fee therefore, assign all or a portion
of its interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Parent Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPV
to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV. This
Section 13.6(g)
may
not be amended without the written consent of the
SPV. Notwithstanding anything to the contrary in this Agreement, (x)
no SPV shall be entitled to any greater rights under
Sections 2.10
,
2.11
, and
5.4
than its Granting Lender would have been entitled
to
absent the use of such SPV and (y) each SPV agrees to be subject to the
requirements of
Sections 2.10
,
2.11
, and
5.4
as though it
were a Lender and has acquired its interest by assignment pursuant to
clause
(b)
of this
Section 13.6
.
13.7.
Replacements of Lenders under Certain
Circumstances
.
(a) The
Borrowers shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to
Section 2.10
,
3.5
or
5.4
, (b) is affected in the manner described in
Section
2.10(a)(iii)
and as a result thereof any of the actions described in such
Section is required to be taken or (c) becomes a Defaulting Lender, with
a
replacement bank or other financial institution,
provided
that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event
of
Default under
Section 11.1
or
11.5
shall have occurred and be
continuing at the time of such replacement, (iii) the Borrowers shall repay
(or
the replacement bank or institution shall purchase, at par) all Loans and
other
amounts (other than any disputed amounts), pursuant to
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case may be) owing to such
replaced Lender prior to the date of replacement, (iv) the replacement bank
or
institution, if not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent,
(v)
the replaced Lender shall be obligated to make such
replacement
in accordance with the provisions of
Section 13.6
(
provided
that
the Borrowers shall be obligated to pay the registration and processing
fee
referred to therein) and (vi) any such replacement shall not be deemed to
be a waiver of any rights that the Borrowers, the Administrative Agent
or any
other Lender shall have against the replaced Lender.
(b) If
any Lender (such Lender, a “
Non-Consenting Lender
”) has failed
to consent to a proposed amendment, waiver, discharge or termination that
pursuant to the terms of
Section 13.1
requires the consent of all of the
Lenders affected or the Supermajority Lenders and with respect to which the
Required Lenders shall have granted their consent, then provided no Event
of
Default then exists, the Borrowers shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting
Lender
by requiring such Non-Consenting Lender to assign its Loans, and its Commitments
hereunder to one or more assignees reasonably acceptable to the Administrative
Agent,
provided
that: (a) all Obligations of the Borrowers
owing to such Non-Consenting Lender being replaced shall be paid in full
to such
Non-Consenting Lender concurrently with such assignment, and (b) the replacement
Lender shall purchase the foregoing by paying to such Non-Consenting Lender
a
price equal to the principal amount thereof plus accrued and unpaid interest
thereon. In connection with any such assignment, the Borrowers,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with
Section 13.6
.
13.8.
Adjustments; Set-off
.
(a) If
any Lender (a “
benefited Lender
”) shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in
Section
11.5
, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender’s Loans, or interest thereon, such benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender’s Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to
cause
such benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders;
provided
,
however
,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender, such purchase shall be rescinded, and
the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b)
After the occurrence and during the continuance of
an Event of Default, in addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
any
Borrower, any such notice being expressly waived by each Borrower to the
extent
permitted by applicable law, upon any amount becoming due and payable by
any
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and
all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency,
in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrowers. Each
Lender agrees promptly to notify such Borrower (and the Parent Borrower,
if
other) and the Administrative
Agent
after any such set-off and application made by such Lender,
provided
that
the failure to give such notice shall not affect the validity of such set-off
and application.
13.9.
Counterparts
.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including by facsimile or other
electronic transmission), and all of said counterparts taken together shall
be
deemed to constitute one and the same instrument. A set of the copies
of this Agreement signed by all the parties shall be lodged with the Borrowers
and the Administrative Agent.
13.10.
Severability
.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
13.11
.
Integration
.
This Agreement and the other Credit Documents represent the agreement of
the
Borrowers, the Collateral Agent, the Administrative Agent and the Lenders
with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Borrower, the Administrative Agent,
the
Collateral Agent nor any Lender relative to subject matter hereof not expressly
set forth or referred to herein or in the other Credit Documents.
13.12
.
GOVERNING LAW
.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
13.13.
Submission to Jurisdiction; Waivers
.
Each Borrower irrevocably and unconditionally:
(a)
submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Credit Documents to
which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the [non-]exclusive general jurisdiction of the courts of the
State
of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;
(b)
consents that any such action or
proceeding may be brought in such courts and waives any objection that it
may
now or hereafter have to the venue of any such action or proceeding in any
such
court or that such action or proceeding was brought in an inconvenient court
and
agrees not to plead or claim the same;
(c)
agrees that service of process
in any such action or proceeding may be effected by mailing a copy thereof
by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such Person at its address set forth on
Schedule 13.2
at such other address of which the Administrative Agent shall have been notified
pursuant to
Section 13.2
;
(d)
agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law [or shall
limit
the right to sue in any other jurisdiction];
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this
Section 13.13
any special, exemplary, punitive or consequential
damages; and
(f)
each Borrower agrees that a final judgment in any action
or proceeding shall be conclusive and may be enforced in other jurisdictions
by
suit on the judgment or in any other manner provided by law.
13.1
4.
Acknowledgments
.
Each Borrower hereby acknowledges that:
(a)
it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Credit
Documents;
(b) (i) the
credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Credit Document) are
an
arm’s-length commercial transaction between the Borrowers, on the one hand, and
the Administrative Agent, the Lender and the other Agents on the other hand,
and
the Borrowers and the other Credit Parties are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of
the
transactions contemplated hereby and by the other Credit Documents (including
any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, each of the
Administrative Agent and the other Agents, is and has been acting solely
as a
principal and is not the financial advisor, agent or fiduciary for any of
the
Borrowers, any other Credit Parties or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor any other Agent has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of any Borrower or any other
Credit
Party with respect to any of the transactions contemplated hereby or the
process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Credit Document (irrespective of whether
the
Administrative Agent or any other Agent has advised or is currently advising
any
of the Borrowers, the other Credit Parties or their respective Affiliates
on
other matters) and neither the Administrative Agent or other Agent has any
obligation to any of the Borrowers, the other Credit Parties or their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Credit Documents;
(iv)
the Administrative Agent and its Affiliates, each other Agent and each Affiliate
of the foregoing may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrowers and their respective
Affiliates, and neither the Administrative Agent nor any other Agent has
any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) neither the Administrative Agent nor any
other Agent has provided and none will provide any legal, accounting, regulatory
or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other
Credit Document) and each Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed
appropriate. Each Borrower hereby waives and releases, to the fullest
extent permitted by law, any claims that it
may
have
against the Administrative Agent or any other Agent with respect to any
breach
or alleged breach of agency or fiduciary duty; and
(c)
no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among any Borrower, on the one hand, and any
Lender,
on the other hand.
13.15.
WAIVERS
OF JURY TRIAL
.
EACH BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16.
Confidentiality
.
The Administrative Agent, each other Agent and each Lender shall hold all
non-public information furnished by or on behalf of the Parent Borrower or
any
of its Subsidiaries in connection with such Lender’s evaluation of whether to
become a Lender hereunder or obtained by such Lender, the Administrative
Agent
or such other Agent pursuant to the requirements of this Agreement
(“
Confidential Information
”), confidential in accordance with
its customary procedure for handling confidential information of this nature
and
(in the case of a Lender that is a bank) in accordance with safe and sound
banking practices and in any event may make disclosure as required or requested
by any governmental, regulatory or self-regulatory agency or representative
thereof or pursuant to legal process or applicable law or regulation or (a)
to
such Lender’s or the Administrative Agent’s or such other Agent’s attorneys,
professional advisors, independent auditors, trustees or Affiliates, (b)
to an
investor or prospective investor in a Securitization that agrees its access
to
information regarding the Credit Parties, the Loans and the Credit Documents
is
solely for purposes of evaluating an investment in a Securitization and who
agrees to treat such information as confidential, (c) to a trustee, collateral
manager, servicer, backup servicer, noteholder or secured party in connection
with the administration, servicing and reporting on the assets serving as
collateral for a Securitization and who agrees to treat such information
as
confidential and (d) to a nationally recognized ratings agency that requires
access to information regarding the Credit Parties, the Loans and Credit
Documents in connection with ratings issued with respect to a Securitization;
provided
that unless specifically prohibited by applicable law or court
order, each Lender, the Administrative Agent and each other Agent shall use
commercially reasonable efforts to notify the Parent Borrower of any request
made to such Lender, the Administrative Agent or such other Agent, as
applicable, by any governmental, regulatory or self-regulatory agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure
of
such information, and
provided further
that in no event shall any Lender,
the Administrative Agent or any other Agent be obligated or required to return
any materials furnished by the Parent Borrower or any
Subsidiary. Each Lender, the Administrative Agent and each other
Agent agrees that it will not provide to prospective Transferees or to any
pledgee referred to in
Section 13.6
or to prospective direct or indirect
contractual counterparties in swap agreements to be entered into in connection
with Loans made hereunder any of the Confidential Information unless such
Person
is advised of and agrees to be bound by the provisions of this
Section
13.16
or confidentiality provisions at least as restrictive as those set
forth in the
Section 13.16
.
13.17.
Direct Website Communications
.
(a)
Any Borrower may, at its option, provide to the Administrative Agent
any information, documents and other materials that it is obligated to furnish
to the Administrative Agent pursuant to the Credit Documents, including,
without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any
such
communication that (A) relates to a request for a new, or a conversion of
an
existing, borrowing or other extension of credit (including any election
of an
interest rate or interest period relating thereto), (B) relates to the payment
of any principal or other amount due under the Credit Agreement prior to
the
scheduled date therefor, (C) provides notice of any default or event of default
under this Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of the Credit Agreement and/or any borrowing
or
other extension of credit thereunder (all such non-excluded communications
being
referred to herein collectively as “
Communications
”), by
transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent
at
[ ];
provided
that: (i) upon written
request by the Administrative Agent, the Parent Borrower shall deliver paper
copies of such documents to the Administrative Agent for further distribution
to
each Lender until a written request to cease delivering paper copies is given
by
the Administrative Agent and (ii) the Parent Borrower shall notify (which
may be
by facsimile or electronic mail) the Administrative Agent of the posting
of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Each
Lender shall be solely responsible for timely accessing posted documents
or
requesting delivery of paper copies of such documents from the Administrative
Agent and maintaining its copies of such documents. Nothing in this
Section 13.17
shall prejudice the right of the Borrowers, the
Administrative Agent, any other Agent or any Lender to give any notice or
other
communication pursuant to any Credit Document in any other manner specified
in
such Credit Document.
(i)
The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set forth
above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Credit Documents. Each Lender agrees that
notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Credit
Documents. Each Lender agrees (A) to notify the Administrative Agent
in writing (including by electronic communication) from time to time of such
Lender’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such e-mail
address.
(b)
The Parent Borrower further agrees that the Administrative Agent may make
the Communications available to the Lenders by posting the Communications
on
Intralinks or a substantially similar electronic transmission system (the
“
Platform
”), so long as the access to such Platform is limited
(i) to the Agents and the Lenders and (ii) remains subject the confidentiality
requirements set forth in
Section 13.16
.
(c)
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE
BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM,
AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS
OR
THE PLATFORM. In no event shall the Administrative Agent or any of
its Related Parties (collectively, the “
Agent Parties
” and each
an “
Agent Party
”) have any liability to any Borrower, any
Lender, the Letter of Credit Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract
or
otherwise) arising out of any Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the internet, except to the
extent
the liability of any Agent Party resulted from such Agent Party’s (or any of its
Related Parties’ (other than any trustee or advisor)) gross negligence, bad
faith or willful misconduct or material breach of the Credit
Documents.
Each
Borrower and each Lender acknowledge that certain of the Lenders may be
“public-side” Lenders (Lenders that do not wish to receive material non-public
information with respect to the Parent Borrower, its Subsidiaries or their
securities) and, if documents or notices required to be delivered pursuant
to
the Credit Documents or otherwise are being distributed through the Platform,
any document or notice that the Parent Borrower has indicated contains only
publicly available information with respect to the Parent Borrower may be
posted
on that portion of the Platform designated for such public-side
Lenders. If the Parent Borrower has not indicated whether a document
or notice delivered contains only publicly available information, the
Administrative Agent shall post such document or notice solely on that portion
of the Platform designated for Lenders who wish to receive material nonpublic
information with respect to the Parent Borrower, its Subsidiaries and their
securities. Notwithstanding the foregoing, the Parent Borrower shall
use commercially reasonable efforts to indicate whether any document or notice
contains only publicly available information.
13.19.
USA PATRIOT Act
.
Each Lender hereby notifies the Borrowers that pursuant to the requirements
of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “
Patriot Act
”), it is required to
obtain, verify and record information that identifies each Credit Party,
which
information includes the name and address of each Credit Party and other
information that will allow such Lender to identify each Credit Party in
accordance with the Patriot Act.
13.20.
Judgment Currency
.
If, for the purposes of obtaining judgment in any court, it is necessary
to
convert a sum due hereunder or any other Credit Document in one currency
into
another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the
first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Borrowers in respect
of any such sum due from it to the Administrative Agent or the Lenders hereunder
or under the other Credit Documents shall, notwithstanding any judgment in
a
currency (the “
Judgment Currency
”) other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement (the “
Agreement Currency
”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent
of
any sum adjudged to be so due in the Judgment Currency, the
Administrative
Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Administrative
Agent from the Borrowers in the Agreement Currency, the Borrowers agree,
as a
separate obligation and notwithstanding any such judgment, to indemnify
the
Administrative Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess
to
the Parent Borrower (or to any other Person who may be entitled thereto
under
applicable law).
13.21.
Payments Set Aside
.
To the extent that any payment by or on behalf of the Borrowers is made to
any
Agent or any Lender, or any Agent or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set
aside
or required (including pursuant to any settlement entered into by such Agent
or
such Lender in its discretion) to be repaid to a trustee, receiver or any
other
party, in connection with any proceeding or otherwise, then (a) to the extent
of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent,
plus
interest thereon from the date of such demand to the date such payment is
made
at a rate per annum equal to the applicable Overnight Rate from time to time
in
effect.
13.22.
Joint and Several Liability
.
Each Borrower hereby agrees that it is jointly and severally liable under
this
Agreement for all Obligations (including any such Obligations arising under
Secured Hedge Agreements and Secured Cash Management Agreements), regardless
of
the manner or amount in which proceeds of any Loans are used, allocated,
shared
or disbursed by or among the Borrowers themselves, or the manner in which
an
Agent and/or any Lender accounts for such Loans or other extensions of credit
on
its books and records. All Loans, upon funding, shall be deemed to be
jointly funded to and received by the Borrowers. Each Borrower shall
be liable for (a) all amounts due to an Agent and/or any Lender from the
Borrowers under this Agreement and (b) all other Obligations owed to parties
under any Secured Hedge Agreement or Secured Cash Management Agreement, in
each
case regardless of which Borrower actually receives Loans or other extensions
of
credit hereunder or the amount of such Loans and extensions of credit received
or the manner in which such Agent and/or such Lender accounts for such Loans
or
other extensions of credit on its books and records. Each Borrower’s
Obligation with respect to Loans and other extensions of credit made to it,
as
well as its Obligations with respect to Secured Hedge Agreements and Secured
Cash Management Agreements, and such Borrower’s Obligations arising as a result
of the joint and several liability of such Borrower hereunder with respect
to
Loans made to, or Obligations owed by, the other Borrowers hereunder shall
be
separate and distinct obligations, but all such Obligations shall be primary
obligations of such Borrower. The Borrowers acknowledge and expressly
agree with the Agents and each Lender that the joint and several liability
of
each Borrower is required solely as a condition to, and is given solely as
inducement for and in consideration of, credit or accommodations extended
or to
be extended under the Credit Documents to any or all of the other Borrowers
and
is not required or given as a condition of extensions of credit to such
Borrower. Each
Borrower’s Obligations under this Agreement shall, to the fullest extent
permitted by law, be unconditional irrespective of (i) the validity or
enforceability, avoidance, or subordination of the Obligations of any other
Borrower or of any promissory note or other document evidencing all or
any part
of the Obligations of any other Borrower, (ii) the absence of any attempt
to
collect the Obligations from any other Borrower, or any other security
therefor,
or the absence of any other action to enforce the same, (iii) the waiver,
consent, extension, forbearance, or granting of any indulgence by an Agent
and/or any Lender with respect to any provision of any instrument evidencing
the
Obligations of any other Borrower, or any part thereof, or any other agreement
now or hereafter executed by any other Borrower and delivered to an Agent
and/or
any Lender, (iv) the failure by an Agent and/or any Lender to take any
steps to
perfect and maintain its security interest in, or to preserve its rights
to, any
security or collateral for the Obligations of any other Borrower, (v) an
Agent’s
and/or any Lender’s election, in any proceeding instituted under the Bankruptcy
Code, of the application of Section 1111(b)(2) of the Bankruptcy Code,
(vi) any
borrowing or grant of a security interest by any other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the
disallowance of all or any portion of an Agent’s and/or any Lender’s claim(s)
for the repayment of the Obligations of any other Borrower under Section
502 of
the Bankruptcy Code, or (viii) any other circumstances which might constitute
a
legal or equitable discharge or defense of a guarantor or of any other
Borrower. With respect to any Borrower’s Obligations arising as a
result of the joint and several liability of the Borrowers hereunder with
respect to Revolving Credit Loans or other extensions of credit made to
any of
the other Borrowers hereunder (or under any Secured Hedge Agreement or
Secured
Cash Management Agreement), such Borrower waives, until the Obligations
shall
have been paid in full and this Agreement shall have been terminated, any
right
to enforce any right of subrogation or any remedy which an Agent and/or
any
Lender now has or may hereafter have against any other Borrower, any endorser
or
any guarantor of all or any part of the Obligations, and any benefit of,
and any
right to participate in, any security or collateral given to an Agent and/or
any
Lender to secure payment of the Obligations or any other liability of any
Borrower to an Agent and/or any Lender. Upon any Event of Default,
the Agents may proceed directly and at once, without notice, against any
Borrower to collect and recover the full amount, or any portion of the
Obligations, without first proceeding against any other Borrower or any
other
Person, or against any security or collateral for the
Obligations. Each Borrower consents and agrees that the Agents shall
be under no obligation to marshal any assets in favor of any Borrower or
against
or in payment of any or all of the Obligations. Notwithstanding
anything to the contrary in the foregoing, none of the foregoing provisions
of
this
Section 13.19
shall apply to any Person released from its
Obligations as a Borrower in accordance with
Section
13.1
.
13.23.
Contribution and Indemnification Among the Borrowers
.
Each Borrower is obligated to repay the Obligations as a joint and several
obligor under this Agreement. To the extent that any Borrower shall,
under this Agreement as a joint and several obligor, repay any of the
Obligations constituting Loans made to another Borrower hereunder or other
Obligations incurred directly and primarily by any other Borrower (an
“
Accommodation Payment
”), then the Borrower making such
Accommodation Payment shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Borrowers in an amount, for
each
of such other Borrowers, equal to a fraction of such Accommodation Payment,
the
numerator of which fraction is such other Borrower’s Allocable Amount (as
defined below) and the denominator of which is the sum of the Allocable Amounts
of all of the Borrowers. As of any
date
of
determination, the “
Allocable Amount
” of each Borrower shall be
equal to the maximum amount of liability for Accommodation Payments which
could
be asserted against such Borrower hereunder without (a) rendering such
Borrower
“insolvent” within the meaning of Section 101(31) of the Bankruptcy Code,
Section 2 of the Uniform Fraudulent Transfer Act (“
UFTA
”) or
Section 2 of the Uniform Fraudulent Conveyance Act (“
UFCA
”),
(b) leaving such Borrower with unreasonably small capital or assets, within
the
meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or
Section
5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as
they
become due within the meaning of Section 548 of the Bankruptcy Code or
Section 4
of the UFTA, or Section 5 of the UFCA. All rights and claims of
contribution, indemnification, and reimbursement under this Section shall
be
subordinate in right of payment to the prior payment in full of the
Obligations. The provisions of this Section shall, to the extent
expressly inconsistent with any provision in any Credit Document, supersede
such
inconsistent provision.
13.24.
Agency of the Parent Borrower for Each Other Borrower
.
Each of the other Borrowers irrevocably appoints the Parent Borrower as its
agent for all purposes relevant to this Agreement, including the giving and
receipt of notices and execution and delivery of all documents, instruments,
and
certificates contemplated herein (including, without limitation, execution
and
delivery to the Agents of Borrowing Base Certificates, Notices of Borrowing
and
Notices of Conversion or Continuation) and all modifications
hereto. Any acknowledgment, consent, direction, certification, or
other action which might otherwise be valid or effective only if given or
taken
by all or any of the Borrowers or acting singly, shall be valid and effective
if
given or taken only by the Parent Borrower, whether or not any of the other
Borrowers join therein, and the Agents and the Lenders shall have no duty
or
obligation to make further inquiry with respect to the authority of the Parent
Borrower under this
Section 13.24
; provided that nothing in this
Section 13.24
shall limit the effectiveness of, or the right of the
Agents and the Lenders to rely upon, any notice (including without limitation
a
Notice of Borrowing or Notices of Conversion or Continuation), document,
instrument, certificate, acknowledgment, consent, direction, certification
or
other action delivered by any Borrower pursuant to this Agreement.
13.25
Reinstatement
. This
Agreement shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative
Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Parent Borrower or any Subsidiary Borrower,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments
had
not been made.
13.26.
Express Waivers by Borrowers in Respect of Cross Guaranties and Cross
Collateralization
.
Each Borrower agrees as follows:
(a) Each
Borrower hereby waives: (i) notice of acceptance of this Agreement;
(ii) notice of the making of any Loans, the issuance of any Letter of Credit
or
any other financial accommodations made or extended under the Credit Documents
or the creation or existence of any Obligations; (iii) notice of the amount
of
the Obligations, subject, however, to such Borrower’s right to make inquiry of
the Administrative Agent to ascertain
the
amount of the Obligations at any reasonable time; (iv) notice of any adverse
change in the financial condition of any other Borrower or of any other
fact
that might increase such Borrower’s risk with respect to such other Borrower
under the Credit Documents; (v) notice of presentment for payment, demand,
protest, and notice thereof as to any promissory notes or other instruments
among the Credit Documents; and (vii) all other notices (except if such
notice is specifically required to be given to such Borrower hereunder
or under
any of the other Credit Documents to which such Borrower is a party) and
demands
to which such Borrower might otherwise be entitled;
(b) Each
Borrower hereby waives the right by statute or otherwise to require an Agent
or
any Lender to institute suit against any other Borrower or to exhaust any
rights
and remedies which an Agent or any Lender has or may have against any other
Borrower. Each Borrower further waives any defense arising by reason
of any disability or other defense of any other Borrower (other than the
defense
of payment in full) or by reason of the cessation from any cause whatsoever
of
the liability of any such Borrower in respect thereof;
(c) Each
Borrower hereby waives and agrees not to assert against any Agent, any Lender,
or any Letter of Credit Issuer: (i) any defense (legal or equitable)
other than a defense of payment, set-off, counterclaim, or claim which such
Borrower may now or at any time hereafter have against any other Borrower
or any
other party liable under the Credit Documents; (ii) any defense, set-off,
counterclaim, or claim of any kind or nature available to any other Borrower
(other than a defense of payment) against any Agent, any Lender, or any Letter
of Credit Issuer, arising directly or indirectly from the present or future
lack
of perfection, sufficiency, validity, or enforceability of the Obligations
or
any security therefor; (iii) any right or defense arising by reason of any
claim
or defense based upon an election of remedies by any Agent, any Lender, or
any
Letter of Credit Issuer under any applicable law; (iv) the benefit of any
statute of limitations affecting any other Borrower’s liability
hereunder;
(d) Each
Borrower consents and agrees that, without notice to or by such Borrower
and
without affecting or impairing the obligations of such Borrower hereunder,
the
Agents may (subject to any requirement for consent of any of the Lenders
to the
extent required by this Agreement), by action or inaction: (i)
compromise, settle, extend the duration or the time for the payment of, or
discharge the performance of, or may refuse to or otherwise not enforce the
Letter of Credit Issuer documents; (ii) release all or any one or more parties
to any one or more of the Letter of Credit Issuer documents or grant other
indulgences to any other Borrower in respect thereof; (iii) amend or modify
in
any manner and at any time (or from time to time) any of the Letter of Credit
Issuer documents; or (iv) release or substitute any Person liable for payment
of
the Obligations, or enforce, exchange, release, or waive any security for
the
Obligations; and
(e) Each
Borrower represents and warrants to the Agents and the Lenders that such
Borrower is currently informed of the financial condition of all other Borrowers
and all other circumstances which a diligent inquiry would reveal and which
bear
upon the risk of nonpayment of the Obligations. Each Borrower further
represents and warrants that such Borrower has read and understands the terms
and conditions of the Credit Documents. Each Borrower agrees that
neither the Agents, any Lender, nor any Letter of Credit Issuer has any
responsibility
to inform any Borrower of the financial condition of any other Borrower
or of
any other circumstances which bear upon the risk of nonpayment or nonperformance
of the Obligations.
-163-
EXHIBIT
4.7
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT dated as of July 6, 2007, among Dollar General Corporation,
a
Tennessee corporation (the “
Parent
Borrower
”),
each
of the Subsidiaries of the Parent Borrower party to the Credit Agreement (as
defined below) (each such subsidiary, a “
Subsidiary
Borrower
”;
together with the Parent Borrower, the “
Borrowers
”)
and
each of the subsidiaries of the Parent Borrower that becomes a party hereto
pursuant to Section 8.13 (each such entity being a “
Subsidiary
Grantor
”
and,
collectively, the “
Subsidiary
Grantors
”;
the
Subsidiary Grantors, the Parent Borrower and the Subsidiary Borrowers are
referred to collectively as the “
Grantors
”),
and
The CIT Group/Business Credit Inc. (“
CIT
”),
as
Collateral Agent (in such capacity, the “
Collateral
Agent
”)
under
the Credit Agreement for the benefit of the Secured Parties.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
reference is made to that certain ABL Credit Agreement, dated as of the date
hereof, (as the same may be amended, restated, supplemented or otherwise
modified, refinanced or replaced from time to time, the “
Credit
Agreement
”)
among
the Parent Borrower, the Subsidiary Borrowers, the lenders or other financial
institutions or entities from time to time party thereto (the “
Lenders
”),
and
CIT, as Administrative Agent and Collateral Agent;
WHEREAS,
(a) pursuant to the Credit Agreement, among other things, the Lenders have
severally agreed to make Loans to the Borrowers and the Letter of Credit Issuer
has agreed to issue Letters of Credit for the account of the Borrowers or the
Restricted Subsidiaries upon the terms and subject to the conditions set forth
therein and (b) one or more Cash Management Banks or Hedge Banks may from time
to time enter into Secured Cash Management Agreements or Secured Hedge
Agreements with the Borrowers and/or its Subsidiaries;
WHEREAS,
pursuant to the Credit Agreement, each Borrower is jointly and severally liable
under the Credit Agreement for all Obligations, regardless of the manner or
amount in which proceeds of Loans are used, allocated, shared or disbursed
by or
among the Borrowers themselves, or the manner in which an Agent and/or any
Lender accounts for such Loans or other extensions of credit on its books and
records;
WHEREAS,
each Subsidiary Grantor that is not a Borrower is a Guarantor;
WHEREAS,
the proceeds of the Loans and the Letters of Credit will be used in part to
enable the Borrowers to make valuable transfers to any Grantors in connection
with the operation of their respective businesses;
WHEREAS,
each Grantor acknowledges that it will derive substantial direct and indirect
benefit from the making of the Loans and the issuance of Letters of Credit;
and
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make the Loans
to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered this Security Agreement to the Collateral Agent for
the
ratable benefit of the Secured Parties;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders to
enter into the Credit Agreement and the Letter of Credit Issuer to issue Letters
of Credit under the Credit Agreement, to induce the Lenders to make the Loans
to
the Borrowers under the Credit Agreement and to induce one or more Lenders
or
affiliates of Lenders to enter into Secured Cash Management Agreements and
Secured Hedge Agreements with the Borrowers and/or their respective
Subsidiaries, the Grantors hereby agree with the Collateral Agent, for the
benefit of the Secured Parties, as follows:
1.
Defined
Terms
.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b)
Terms
used herein without definition that are defined in the UCC have the meanings
given to them in the UCC, and if defined in more than one article of the UCC
shall have the meanings set forth in Article 9 thereof, including the following
terms (which are capitalized herein): Chattel Paper, Commodity Contract, Deposit
Accounts, Documents, Instruments, Inventory, Letter-of-Credit Right, Securities
Account, Security Entitlement, Supporting Obligation and Tangible Chattel
Paper.
(c)
The
following terms shall have the following meanings:
“
Accounts
”
means
all now present and future “accounts” and “payment intangibles” (in each case,
as defined in Article 9 of the UCC).
“
Capital
Stock Collateral
”
means:
(1)
all
of
the Stock and Stock Equivalents in the Parent Borrower’s Domestic Subsidiaries;
(2)
65%
of
the Stock and Stock Equivalents in the Subsidiaries that are not Domestic
Subsidiaries but which are directly owned by any of the Borrowers or any
Domestic Subsidiary thereof;
(3)
Records,
“supporting obligations” (as defined in Article 9 of the UCC) and related
Letters of Credit, commercial tort claims or other claims and causes of action,
in each case, to the extent related primarily to the foregoing; and
(4)
substitutions,
replacements, accessions, products and proceeds (including, without limitation,
insurance proceeds, licenses, royalties, income, payments, claims, damages
and
proceeds of suit) of any or all of the foregoing.
Notwithstanding
the foregoing, “Capital Stock Collateral” shall not include (x) Excluded
Stock and Stock Equivalents, (y) any Stock and Stock Equivalents issued by
any
Subsidiary for so long as such Subsidiary does not (on a consolidated basis
with
its Restricted Subsidiaries) have property, plant and equipment with a book
value in excess of $5,000,000 or a contribution to Consolidated EBITDA for
any
four fiscal quarter period that includes any date on
or
after
the Closing Date in excess of $10,000,000 and (z) any Stock and Stock
Equivalents issued by ARIC.
“
Collateral
”
shall
have the meaning provided in Section 2.
“
Collateral
Account
”
shall
mean any collateral account established by the Collateral Agent as provided
in
Section 5.1 or Section 5.3.
“
Collateral
Agent
”
shall
have the meaning provided in the preamble to this Security
Agreement.
“
Control
”
shall
mean “control,” as such term is defined in Section 9-104 or 9-106, as
applicable, of the UCC.
“
Copyright
License
”
shall
mean any written agreement, now or hereafter in effect, granting any right
to
any third party under any copyright now or hereafter owned by any Grantor
(including all Copyrights) or that any Grantor otherwise has the right to
license, or granting any right to any Grantor under any Copyright now or
hereafter owned by any third party, and all rights of any Grantor under any
such
agreement.
“
Copyrights
”
shall
mean, with respect to any Person, all of the following now owned or hereafter
acquired by such Person: (i) all copyright rights in any work subject to the
copyright laws of the United States or any other country or group of countries,
whether as author, assignee, transferee or otherwise and (ii) all registrations
and applications for registration of any such copyright in the United States
or
any other country or group of countries, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office.
“
Equipment
”
shall
mean all “equipment,” as such term is defined in Article 9 of the UCC, now or
hereafter owned by any Grantor or to which any Grantor has rights and, in any
event, shall include all machinery, equipment, furnishings, movable trade
fixtures and vehicles now or hereafter owned by any Grantor or to which any
Grantor has rights and any and all Proceeds, additions, substitutions and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon
or
affixed thereto; but excluding equipment to the extent it is subject to a Lien
permitted by the Term Loan Credit Agreement and the terms of the Indebtedness
secured by such Lien prohibit assignment of, or granting of a security interest
in, such Grantor’s rights and interests therein (other than to the extent that
any such prohibition would be rendered ineffective pursuant to Sections 9-406,
9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions)
of
any relevant jurisdiction or any other applicable law),
provided
,
that
immediately upon the repayment of all Indebtedness secured by such Lien, such
Grantor shall be deemed to have granted a security interest in such equipment
pursuant to the Term Loan Collateral Documents.
“
Excluded
Stock and Stock Equivalents
”
shall
mean (i) any Stock or Stock Equivalents with respect to which, in the reasonable
judgment of the Collateral Agent (confirmed in writing by notice to the Parent
Borrower), the cost or other consequences (including any adverse tax
consequences) of pledging such Stock or Stock Equivalents in favor of the
Secured
Parties,
(iii) solely in the case of any pledge of Stock and Stock Equivalents of
any
Foreign Subsidiary to secure the Obligations, any Stock or Stock Equivalents
of
any class of such Foreign Subsidiary in excess of 65% of the outstanding
Stock
or Stock Equivalents of such class (such percentage to be adjusted upon any
Change in Law as may be required to avoid adverse U.S. federal income tax
consequences to the Parent Borrower or any Subsidiary), (iv) any Stock or
Stock
Equivalents to the extent the pledge thereof would violate any applicable
Requirement of Law, (v) in the case of (A) any Stock or Stock Equivalents
of any
Subsidiary to the extent such Stock or Stock Equivalents are subject to a
Lien
permitted by
Section
10.2(h)
of the
Term Loan Credit Agreement or (B) any Stock or Stock Equivalents of any
Subsidiary that is not wholly-owned by the Parent Borrower and its Subsidiaries
at the time such Subsidiary becomes a Subsidiary, any Stock or Stock Equivalents
of each such Subsidiary described in
clause
(A)
or
(B)
to the
extent (1) that a pledge thereof to secure the Obligations is prohibited
by any
applicable Contractual Requirement (other than customary non-assignment
provisions which are ineffective under the Uniform Commercial Code or other
applicable law), (2) any Contractual Requirement prohibits such a pledge
without
the consent of any other party;
provided
that
this clause (2) shall not apply if (x) such other party is a Credit Party
or
wholly-owned Subsidiary or (y) consent has been obtained to consummate such
pledge (it being understood that the foregoing shall not be deemed to obligate
the Borrower or any Subsidiary to obtain any such consent)) and for so long
as
such Contractual Requirement or replacement or renewal thereof is in effect,
or
(3) a pledge thereof to secure the Obligations would give any other party
(other
than a Credit Party or wholly-owned Subsidiary) to any contract, agreement,
instrument or indenture governing such Stock or Stock Equivalents the right
to
terminate its obligations thereunder (other than customary non-assignment
provisions which are ineffective under the Uniform Commercial Code or other
applicable law) and (vi) any Stock or Stock Equivalents of any Subsidiary
to the
extent that (A) the pledge of such Stock or Stock Equivalents would result
in
adverse tax consequences to the Borrower or any Subsidiary as reasonably
determined by the Borrower and (B) such Stock or Stock Equivalents have been
identified in writing to the Collateral Agent by an Authorized Officer of
the
Parent Borrower.
“
General
Intangibles
”
shall
mean all “general intangibles” as such term is defined in Article 9 of the UCC
and, in any event, including with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions thereof, to
which such Grantor is a party or under which such Grantor has any right, title
or interest or to which such Grantor or any property of such Grantor is subject,
as the same may from time to time be amended, supplemented or otherwise
modified, including (a) all rights of such Grantor to receive moneys due and
to
become due to it thereunder or in connection therewith, (b) all rights of such
Grantor to receive proceeds of any insurance, indemnity, warranty or guarantee
with respect thereto, (c) all claims of such Grantor for damages arising
out of any breach of or default thereunder and (d) all rights of such
Grantor to terminate, amend, supplement, modify or exercise rights or options
thereunder, to perform thereunder and to compel performance and otherwise
exercise all remedies thereunder, in each case to the extent the grant by such
Grantor of a Security Interest pursuant to this Security Agreement in its right,
title and interest in any such contract, agreement, instrument or indenture
(i)
is not prohibited by such contract, agreement, instrument or indenture without
the consent of any other party thereto, (ii) would not give any other party
to
any such contract, agreement, instrument or indenture the right to terminate
its
obligations thereunder or (iii) is permitted with consent if all necessary
consents to such grant of a Security Interest have
been
obtained from the other parties thereto (other than to the extent that any
such
prohibition or consent requirement referred to in clauses (i), (ii) and (iii)
would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9 409
of the Uniform Commercial Code (or any successor provision or provisions)
of any
relevant jurisdiction or any other applicable law) (it being understood that
the
foregoing shall not be deemed to obligate such Grantor to obtain such consents),
provided
that the
foregoing limitation shall not affect, limit, restrict or impair the grant
by
such Grantor of a Security Interest pursuant to this Security Agreement in
any
Account or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
“
Governmental
Authority
”
means
any
nation, sovereign or government, any state, province, territory or other
political subdivision thereof, and any entity or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including a central bank or stock exchange.
“
Grantor
”
shall
have the meaning assigned to such term in the recitals hereto.
“
Instruments
”
means
all present and future “instruments” (as defined in Article 9 of the
UCC).
“
Intellectual
Property
”
means,
collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses.
“
Intercreditor
Agreement
”
shall
have the meaning provided in Section 8.15.
“
Investment
Property
”
shall
mean all Securities (whether certificated or uncertificated), Security
Entitlements and Commodity Contracts of any Grantor (other than (i) as pledged
pursuant to the Pledge Agreement and (ii) solely with respect to the
Obligations, any Stock or Stock Equivalents of any Foreign Subsidiary in excess
of 65% of the outstanding class of such Stock or Stock Equivalents), whether
now
or hereafter acquired by any Grantor,
except,
in each case, to the extent the grant by a Grantor of a Security Interest
therein pursuant
to
this
Security Agreement in its right, title and interest in any such Investment
Property (i) is prohibited by any contract, agreement, instrument or indenture
governing such Investment Property without the consent of any other party
thereto unless such consent has been expressly obtained, or (ii) would give
any other party to any such contract, agreement, instrument or indenture the
right to terminate its obligations thereunder (other than to the extent that
any
such
prohibition
referred to in clauses (i) and (ii) would be rendered ineffective
pursuant to Sections
9-406,
9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions)
of any
relevant
jurisdiction or any other applicable law) (it being understood that the
foregoing shall not be deemed to obligate any Grantor to seek or obtain any
such
consents referred to in clauses (i)
or
(ii)
above).
“
License
”
shall
mean any license or sublicense to which any Grantor is a party.
“
Net
Available Cash Account
”
means
any
Deposit Account or Securities Account established by any Grantor in accordance
with the requirements of the covenant set forth in Section 9.15 of the Credit
Agreement and which does not contain proceeds of Loans (as defined
in
the
Credit Agreement) or Collateral and which has been identified in writing
to the
Collateral Agent as such at the time that proceeds from any sale of Term
Loan
Collateral shall be deposited pending final application in accordance with
such
covenant.
“
Patent
Licenses
”
means
all present and future agreements providing for the granting of any right in
or
to Patents (whether the applicable Grantor is licensee or licensor
thereunder).
“
Patents
”
means,
collectively, with respect to each Person, all letters patent issued or assigned
to, and all patent applications and registrations made by, such Person (whether
established or registered or recorded in the United States or any other country
or any political subdivision thereof and, in each case, whether owned by or
licensed to such Person), and all goodwill associated therewith, now existing
or
hereafter adopted or acquired, together with any and all (i) rights and
privileges arising under applicable law with respect to such Person’s use of any
patents, (ii) inventions and improvements described and claimed therein, (iii)
reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof and amendments thereto, and rights to obtain
any
of the foregoing, (iv) income, fees, royalties, damages, claims and payments
now
or hereafter due and/or payable thereunder and with respect thereto including
damages and payments for past, present or future infringements thereof, (v)
rights corresponding thereto throughout the world and (vi) rights to sue for
past, present or future infringements thereof.
“
Person
”
means
any individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust or other enterprise or any Governmental
Authority.
“
Proceeds
”
shall
mean all “proceeds” as such term is defined in Article 9 of the UCC and, in any
event, shall include with respect to any Grantor, any consideration received
from the sale, exchange, license, lease or other disposition of any asset or
property that constitutes Collateral, any value received as a consequence of
the
possession of any Collateral and any payment received from any insurer or other
Person or entity as a result of the destruction, loss, theft, damage or other
involuntary conversion of whatever nature of any asset or property that
constitutes Collateral, and shall include (a) all cash and negotiable
instruments received by or held on behalf of the Collateral Agent, and (b)
any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
“
Real
Estate Asset
”
means,
at any time of determination, any interest (fee, leasehold or otherwise) then
owned by any Grantor in any real property.
“
Security
Agreement
”
shall
mean this Security Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
“
Security
Interest
”
shall
have the meaning provided in Section 2.
“
Stock
”
shall
mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares
or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or
other
equivalents (regardless of how designated) of or in a corporation, partnership,
limited liability company or equivalent entity, whether voting or
non-voting.
“
Stock
Equivalents
”
shall
mean all securities convertible into or exchangeable for Stock and all warrants,
options or other rights to purchase or subscribe for any Stock, whether or
not
presently convertible, exchangeable or exercisable.
“
Term
Loan Collateral
”
means
all now owned or hereafter acquired assets or property of any Grantor in respect
of which a Lien is purported to be granted to the Term Loan Collateral Agent,
other than the Collateral, including, without limitation:
(a)
all
Accounts and Chattel Paper, in each case, only to the extent relating to the
sale of Term Loan Collateral;
(b)
all
Equipment;
(c)
all
Capital Stock Collateral;
(d)
all
Real
Estate Assets;
(e)
all
documents of title related to Equipment;
(f)
all
Intellectual Property;
(g)
all
Instruments (other than any such Instruments which constitute Collateral);
(h)
all
Term
Loan General Intangibles;
(i)
the
Net
Available Cash Account;
(j)
Records,
“supporting obligations” (as defined in the UCC as in effect on the date hereof
in the State of New York) and related Letters of Credit, commercial tort claims
or other claims and causes of action, in each case, to the extent not primarily
related to the Collateral; and
(k)
substitutions,
replacements, accessions, products and proceeds (including, without limitation,
insurance proceeds, licenses, royalties, income, payments, claims, damages
and
proceeds of suit) of any or all of the foregoing;
provided
,
however
,
that
the term “Term Loan Collateral” shall include (as provided in Section 3.4 of the
Intercreditor Agreement) Instruments or Chattel Paper to the extent such
Instruments or Chattel Paper constitute identifiable proceeds of Term Loan
Collateral and other identifiable proceeds (including lease payments under
leases of Equipment) of Term Loan Collateral that are deposited or held in
any
such Deposit Accounts or Securities Accounts, in each case other than the Net
Available Cash Account, after an Enforcement Notice (as defined in the
Intercreditor Agreement).
“
Term
Loan Collateral Agent
”
shall
mean Citicorp North America, Inc. or its successor or assigns.
“
Term
Loan Collateral Documents
”
means
the “Security Documents” (as defined in the Term Loan Credit Agreement) and any
other agreement, document or instrument pursuant to which a Lien is granted
securing any Term Loan Obligations or under which rights or remedies with
respect to such Liens are governed.
“
Term
Loan General Intangibles
”
means
all General Intangibles pertaining to the other items of property included
within clauses (a), (b), (c), (d) and (f) of the definition of Term Loan
Collateral, including, without limitation, all contingent rights with respect
to
warranties on Equipment.
“
Trademark
Licenses
”
means
any and all present and future agreements providing for the granting of any
right in or to Trademarks (whether such Grantor is licensee or licensor
thereunder).
“
Trademarks
”
means,
collectively, with respect to each Person, all trademarks, service marks,
slogans, logos, certification marks, trade dress, uniform resource locations
(URL’s), domain names, corporate names, trade names and other source or business
identifiers, whether registered or unregistered, owned by or assigned to such
Person and all registrations and applications for the foregoing (whether
statutory or common law, whether established or registered in the United States,
any State thereof, or any other country or any political subdivision thereof
and, in each case, whether owned by or licensed to such Person), and all
goodwill associated therewith, now existing or hereafter adopted or acquired,
together with any and all (i) rights and privileges arising under
applicable law with respect to such Person’s use of any trademarks,
(ii) reissues, continuations, extensions and renewals thereof and
amendments thereto, (iii) income, fees, royalties, damages and payments now
and hereafter due and/or payable thereunder and with respect thereto, including
damages, claims and payments for past, present or future infringements thereof,
(iv) rights corresponding thereto throughout the world and (v) rights to
sue for past, present and future infringements thereof.
“
UCC
”
shall
mean the Uniform Commercial Code as from time to time in effect in the State
of
New York;
provided
,
however
,
that,
in the event that, by reason of mandatory provisions of law, any of the
attachment, perfection or priority of the Collateral Agent’s and the Secured
Parties’ security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York,
the term “
UCC
”
shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such
provisions.
(d)
The
words
“hereof”, “herein”, “hereto” and “hereunder” and words of similar import when
used in this Security Agreement shall refer to this Security Agreement as a
whole and not to any particular provision of this Security Agreement, and
Section, subsection, clause and Schedule references are to this Security
Agreement unless otherwise specified. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
(e)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
(f)
Where
the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the
relevant part thereof.
(g)
References
to “Lenders” in this Security Agreement shall be deemed to include affiliates of
any Lender that may from time to time enter into Secured Cash Management
Agreements or Secured Hedge Agreements with the Borrowers and/or their
Subsidiaries.
2.
Grant
of Security Interest
.
(a)
Each
Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, for the ratable benefit
of
the Secured Parties, and grants to the Collateral Agent, for the ratable benefit
of the Secured Parties, a lien on and security interest in (the “
Security
Interest
”),
all
of its right, title and interest in, to and under all of the following property
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the “
Collateral
”),
as
collateral security for the prompt and complete payment and performance when
due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations:
(i)
Accounts
(except
to the extent relating to the sale of Term Loan Collateral);
(ii)
Chattel
Paper (except to the extent relating to the sale of Term Loan
Collateral);
(iii)
Instruments
pertaining to the collateral set forth in clauses (i) and (vi) of this
definition;
(iv)
Letter-of-Credit
Rights;
(v)
Deposit
Accounts and Securities Accounts, in each case other than the Net Available
Cash
Account, and all other Investment Property pertaining to the Collateral set
forth in clauses (i) and (vi) of this definition (other than Capital Stock
Collateral), including all cash, marketable securities, securities entitlements,
financial assets and other funds held in or on deposit in any of the foregoing,
(vi)
Inventory
or documents of title, customs receipts, insurance certificates, shipping
documents and other written materials related to the purchase or import of
any
Inventory;
(vii)
General
Intangibles (other than Intellectual Property and Term Loan General
Intangibles);
(viii)
Records,
“supporting obligations”
(as
defined in the UCC as in effect on the date hereof in the State of New York)
and
related Letters of Credit,
commercial
tort claims or other claims and causes of action, in each case, to the extent
primarily related to the foregoing clauses (i) through (viii); and
(ix)
substitutions,
replacements, accessions, products and proceeds (including, without limitation,
insurance proceeds, licenses, royalties, income, payments, claims, damages
and
proceeds of suit) of any or all of the foregoing clauses (i) through
(viii);
provided
,
that
(x) none of the items included in clauses (i) through (ix) above shall
constitute Collateral to the extent (and only to the extent) that the grant
of
the Security Interest therein would violate any Requirement of Law applicable
to
such Collateral (other than to the extent that any such Requirement of Law
would
be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of
the
UCC (or any successor provision or provisions) of any relevant jurisdiction
or
any other applicable law) and (y) to the extent that Collateral under clauses
(ii) and (iii) above constitute identifiable proceeds of Term Loan Collateral
or
to the extent of other identifiable proceeds (including lease payments under
leases of Equipment) of Term Loan Collateral that are deposited or held in
any
such Deposit Accounts or Securities Accounts, in each case other than the Net
Available Cash Account, after an Enforcement Notice, then (as provided in
Section 3.4 of the Intercreditor Agreement) such Collateral under clauses (ii)
and (iii) above or other identifiable proceeds shall be treated as Term Loan
Collateral and shall not constitute Collateral.
(b)
Each
Grantor hereby irrevocably authorizes the Collateral Agent and its Affiliates,
counsel and other representatives, at any time and from time to time, to file
or
record financing statements, amendments to financing statements and, with notice
to the Parent Borrower, and other filing or recording documents or instruments
with respect to the Collateral in such form and in such offices as the
Collateral Agent reasonably determines appropriate to perfect the Security
Interests of the Collateral Agent under this Security Agreement. Each Grantor
hereby also authorizes the Collateral Agent and its Affiliates, counsel and
other representatives, at any time and from time to time, to file continuation
statements with respect to previously filed financing statements. A photographic
or other reproduction of this Security Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction to the Collateral Agent.
Each
Grantor hereby agrees to provide to the Collateral Agent, promptly upon request,
any information reasonably necessary to effectuate the filings or recordings
authorized by this Section 2(b).
The
Security Interests are granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or in any way alter or modify,
any obligation or liability of any Grantor with respect to or arising out of
the
Collateral.
3.
Representations
and Warranties
.
Each
Grantor hereby represents and warrants to the Collateral Agent and each Secured
Party on the date hereof:
3.1
Title;
No Other Liens
.
Except
for (a) the Security Interest granted to the Collateral Agent for the benefit
of
the Secured Parties pursuant to this Security Agreement, (b) the Liens
permitted by the Credit Agreement and (c) any Liens securing Indebtedness which
is no longer outstanding or any Liens with respect to commitments to lend which
have been terminated, such Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No security agreement, financing
statement or other public notice with respect to all or any part of the
Collateral that evidences a Lien securing any material Indebtedness is on file
or of record in any public office, except such as (i) have been filed in favor
of the Collateral Agent for the ratable benefit of the Secured Parties pursuant
to this Security Agreement or (ii) are permitted by the Credit
Agreement.
3.2
Perfected
First Priority Liens
.
(a)
This
Security Agreement is effective to create in favor of the Collateral Agent,
for
its benefit and for the benefit of the Secured Parties, legal, valid and
enforceable Security Interests in the Collateral, subject to the effects of
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
general equitable principles.
(b)
Subject
to the limitations set forth in clause (c) of this Section 3.2, the Security
Interests granted pursuant to this Security Agreement (i) will constitute valid
and perfected Security Interests in the Collateral (as to which perfection
may
be obtained by the filings or other actions described in clause (A) or (B)
of
this paragraph) in favor of the Collateral Agent, for the ratable benefit of
the
Secured Parties, as collateral security for the Obligations, upon (A) the filing
in the applicable filing offices listed on Schedule I hereto of all financing
statements, in each case, naming each Grantor as “debtor” and the Collateral
Agent as “secured party” and describing the Collateral and (B) delivery to the
Collateral Agent (or its bailee) of all Instruments, Chattel Paper, Certificated
Securities and negotiable Documents in each case, properly endorsed for transfer
in blank, in each case included in the Collateral and (ii) are prior to all
other Liens on the Collateral other than Liens permitted pursuant to Section
10.2 of the Credit Agreement.
(c)
Notwithstanding
anything to the contrary herein, no Grantor shall be required to perfect the
Security Interests granted by this Security Agreement (including Security
Interests in cash, cash accounts and Investment Property included in the
Collateral) by any means other than by filings pursuant to the Uniform
Commercial Code of the relevant State(s) and delivery to the Collateral Agent
(or its bailee) to be held in its possession of all Collateral consisting of
Tangible Chattel Paper, Instruments or any Certificated Securities in each
case,
to the extent included in the Collateral with a fair market value in excess
of
$1,500,000 individually.
(d)
It
is
understood and agreed that the Security Interests in cash and Investment
Property created hereunder shall not prevent the Grantors from using such assets
in the ordinary course of their respective businesses.
3.3
Grantor
Information
.
Schedule
II hereto sets forth under the appropriate headings as of the Closing Date:
(1)
the full legal name of such Grantor, (2) to the knowledge of the Grantor, all
trade names or other names under which such Grantor currently conducts business,
(3) the type of organization of such Grantor, (4) the jurisdiction of
organization of such Grantor, (5) its organizational identification number,
if
any, and (6) the jurisdiction where the chief executive office of such Grantor
is located.
4.
Covenants
.
Each
Grantor hereby covenants and agrees with the Collateral Agent and the Secured
Parties that, from and after the date of this Security Agreement until the
Obligations (except for Contingent Indemnification Obligations in respect of
which a claim has not yet been made) are paid in full and the Commitments are
terminated and no Letters of Credit remain outstanding:
4.1
Maintenance
of Perfected Security Interest; Further Documentation
.
(a)
Such
Grantor shall maintain the Security Interest created by this Security Agreement
as a perfected Security Interest having at least the priority described in
Section 3.1 and shall defend such Security Interest against the claims and
demands of all Persons whomsoever, in each case subject to Section
3.2(c).
(b)
Such
Grantor will furnish to the Collateral Agent and the Lenders from time to time
statements and schedules further identifying and describing the assets and
property of such Grantor and such other reports in connection therewith as
the
Collateral Agent may reasonably request.
(c)
Subject
to clause (d) below and Section 3.2(c), each Grantor agrees that at any time
and
from time to time, at the expense of such Grantor, it will execute any and
all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements and other documents), which may be required under any applicable
law,
or which the Collateral Agent or the Required Lenders may reasonably request,
in
order (i) to grant, preserve, protect and perfect the validity and priority
of
the Security Interests created or intended to be created hereby or (ii) to
enable the Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral, including the filing of any financing
or continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Security Interests created hereby, all at
the
expense of such Grantor.
(d)
Notwithstanding
anything in this Section 4.1 to the contrary, (i) with respect to any assets
created or acquired by such Grantor after the date hereof that are required
by
the Credit Agreement to be subject to the Lien created hereby or (ii) with
respect to any Person that, subsequent to the date hereof, becomes a Subsidiary
that is required by the Credit Agreement to become a party hereto, the relevant
Grantor after the acquisition or creation thereof shall promptly take all
actions required by the Credit Agreement or this Section 4.1.
4.2
Damage
or Destruction of Collateral
.
The
Grantors agree promptly to notify the Collateral Agent if any material portion
of the Collateral is damaged or destroyed.
4.3
Notices
.
Each
Grantor will advise the Collateral Agent and the Lenders promptly, in reasonable
detail, of any Lien of which it has knowledge (other than the Security Interests
created hereby or Liens permitted under the Credit Agreement) on any of the
Collateral which would adversely affect, in any material respect, the ability
of
the Collateral Agent to exercise any of its remedies hereunder.
4.4
Changes
in Grantor Information or Status
.
Without
limiting any prohibitions or restrictions on mergers or other transactions
set
forth in the Credit Agreement, no Grantor shall change its name, identity,
corporate structure (e.g. by merger, consolidation, change in corporate form
or
otherwise), type of organization or jurisdiction of organization
or,
in
the case of any Grantor which is a partnership, the sole place of business
and
chief executive office,
unless
it
shall have notified the Collateral Agent in writing at least ten (10) days
prior
to any such change (or such later date as is reasonably acceptable to the
Collateral Agent), identifying such new proposed name, identity, corporate
structure type of organization or jurisdiction of organization or, in the case
of any Grantor which is a partnership, the sole place of business and chief
executive office, and providing such other information in connection therewith
as the Collateral Agent may reasonably request.
5.
Remedial
Provisions
.
5.1
Certain
Matters Relating to Accounts
.
(a)
At
any
time after the occurrence and during the continuance of an Event of Default
and
after giving reasonable notice to the Parent Borrower and any other relevant
Grantor, the Administrative Agent shall have the right, but not the obligation,
to instruct the Collateral Agent to (and upon such instruction, the Collateral
Agent shall) make test verifications of the Accounts in any manner and through
any medium that the Administrative Agent reasonably considers advisable, and
each Grantor shall furnish all such assistance and information as such Agent
may
require in connection with such test verifications. Such Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party.
(b)
Subject
to the terms of the Credit Agreement, the Collateral Agent hereby authorizes
each Grantor to collect such Grantor’s Accounts and the Collateral Agent may
curtail or terminate said authority at any time after the occurrence and during
the continuance of an Event of Default. Subject to the terms of the Credit
Agreement, if required in writing by the Collateral Agent at any time after
the
occurrence and during the continuance of a Cash Dominion Event (as defined
in
the Credit Agreement), any payments of Accounts, when collected by any Grantor,
(i) shall be forthwith (and, in any event, within two Business Days) deposited
by such Grantor in the exact form received, duly endorsed by such Grantor to
the
Collateral Agent if required, in a Collateral Account maintained under the
sole
dominion and control of and on terms and conditions reasonably satisfactory
to
the Collateral Agent, subject to withdrawal by the Collateral Agent for the
account of the Secured Parties only as provided in Section 5.5, and
(ii) until so turned over, shall be held by such Grantor in trust for the
Collateral Agent and the Secured Parties, segregated from other funds of such
Grantor. Each such deposit of Proceeds of Accounts shall be accompanied by
a
report identifying in reasonable detail the nature and source of the payments
included in the deposit.
(c)
At
the
Collateral Agent’s request at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall deliver to the Collateral
Agent all original and other documents evidencing, and relating to, the
agreements and transactions which gave rise to the Accounts, including all
original orders, invoices and shipping receipts.
(d)
Upon
the
occurrence and during the continuance of an Event of Default, a Grantor shall
not grant any extension of the time of payment of any of the Accounts,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partly, any Person liable for the payment thereof, or allow
any credit or discount whatsoever thereon if the Collateral Agent shall have
instructed the Grantors not to grant or make any such extension, credit,
discount, compromise or settlement under any circumstances during the
continuance of such Event of Default.
5.2
Communications
with Credit Parties; Grantors Remain Liable
.
(a)
The
Collateral Agent in its own name or in the name of others may at any time after
the occurrence and during the continuance of an Event of Default, after giving
reasonable notice to the relevant Grantor of its intent to do so, communicate
with obligors under the Accounts to verify with them to the Collateral Agent’s
satisfaction the existence, amount and terms of any Accounts. The Collateral
Agent shall have the absolute right to share any information it gains from
such
inspection or verification with any Secured Party.
(b)
Upon
the
written request of the Collateral Agent at any time after the occurrence and
during the continuance of an Event of Default, each Grantor shall notify
obligors on the Accounts that the Accounts have been assigned to the Collateral
Agent for the ratable benefit of the Secured Parties and that payments in
respect thereof shall be made directly to the Collateral Agent.
(c)
Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Accounts to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with the terms
of any agreement giving rise thereto. Neither the Collateral Agent nor any
Secured Party shall have any obligation or liability under any Account (or
any
agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Collateral Agent or any Secured Party of any
payment relating thereto, nor shall the Collateral Agent or any Secured Party
be
obligated in any manner to perform any of the obligations of any Grantor under
or pursuant to any Account (or any agreement giving rise thereto), to make
any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
5.3
Proceeds
to be Turned Over To Collateral Agent
.
In
addition to the rights of the Collateral Agent and the Secured Parties specified
in Section 5.1 with respect to payments of Accounts, if an Event of Default
shall occur and be continuing and the Collateral Agent so requires by notice
in
writing to the relevant Grantor (it being understood that the exercise of
remedies by the Secured Parties in connection with an Event of Default under
Section 11.5 of the
Credit
Agreement shall be deemed to constitute a request by the Collateral Agent
for
the purposes of this sentence and in such circumstances, no such written
notice
shall be required), all Proceeds received by any Grantor consisting of cash,
checks and other near cash items shall be held by such Grantor in trust for
the
Collateral Agent and the Secured Parties, segregated from other funds of
such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over
to
the Collateral Agent in the exact form received by such Grantor (duly endorsed
by such Grantor to the Collateral Agent, if required). Subject to the terms
of
the Credit Agreement, all Proceeds received by the Collateral Agent hereunder
shall be held by the Collateral Agent in a Collateral Account maintained
under
its dominion and control and on terms and conditions reasonably satisfactory
to
the Collateral Agent (which may be the Collection Account). All Proceeds
while
held by the Collateral Agent in a Collateral Account (or by such Grantor
in
trust for the Collateral Agent and the Secured Parties) shall continue to
be
held as collateral security for all the Obligations and shall not constitute
payment thereof until applied as provided in Section 5.4.
5.4
Application
of Proceeds
.
The
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral as well as any Collateral consisting of cash, at any time after
receipt in the order specified in Section 11 of the Credit Agreement. Upon
any
sale of the Collateral by the Collateral Agent (including pursuant to a power
of
sale granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of
any
part of the purchase money paid over to the Collateral Agent or such officer
or
be answerable in any way for the misapplication thereof.
5.5
Code
and Other Remedies
.
If an
Event of Default shall occur and be continuing, the Collateral Agent may
exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the UCC or any other applicable
law or in equity and also may with notice to the relevant Grantor, sell the
Collateral or any part thereof in one or more parcels at public or private
sale
or sales, at any exchange, broker’s board or office of the Collateral Agent or
any Lender or elsewhere for cash or on credit or for future delivery at such
price or prices and upon such other terms as are commercially reasonable
irrespective of the impact of any such sales on the market price of the
Collateral. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
of Collateral to Persons who will represent and agree that they are purchasing
the Collateral for their own account for investment and not with a view to
the
distribution or sale thereof, and, upon consummation of any such sale, the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of any Grantor, and each Grantor hereby waives (to the extent
permitted by law) all rights of redemption, stay and/or appraisal that it now
has or may at any time in the future have under any rule of law or statute
now
existing or hereafter enacted. The Collateral Agent and any Secured Party shall
have the right upon any such public sale, and, to the extent permitted by law,
upon any such private sale, to purchase the whole or any part of the Collateral
so sold, and the Collateral Agent or such Secured Party may pay the purchase
price by crediting the amount thereof against the Obligations. Each Grantor
agrees that, to the extent notice of sale shall be
required
by law, at least ten days’ notice to such Grantor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Collateral Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
The Collateral Agent may adjourn any public or private sale from time to
time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
To
the extent permitted by law, each Grantor hereby waives any claim against
the
Collateral Agent arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less than the price
that might have been obtained at a public sale, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral to more
than
one offeree. Each Grantor further agrees, at the Collateral Agent’s request to
assemble the Collateral and make it available to the Collateral Agent, at
places
which the Collateral Agent shall reasonably select, whether at such Grantor’s
premises or elsewhere. The Collateral Agent shall apply the net proceeds
of any
action taken by it pursuant to this Section 5.5 in accordance with the
provisions of Section 5.4.
5.6
Deficiency
.
Each
Grantor shall remain liable for any deficiency if the proceeds of any sale
or
other disposition of the Collateral are insufficient to pay its Obligations
and
the fees and disbursements of any attorneys employed by the Collateral Agent
or
any Secured Party to collect such deficiency.
5.7
Amendments,
etc. with Respect to the Obligations; Waiver of Rights
.
Each
Grantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Grantor and without notice to or further
assent by any Grantor, (a) any demand for payment of any of the Obligations
made
by the Collateral Agent or any other Secured Party may be rescinded by such
party and any of the Obligations continued, (b) the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Credit Agreement, the other Credit
Documents, any Letters of Credit and any other documents executed and delivered
in connection therewith and the Secured Hedge Agreements and Secured Cash
Management Agreements and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Administrative Agent (or the Required Lenders, as
the
case may be, or, in the case of any Secured Hedge Agreement or Secured Cash
Management Agreement, the Hedge Bank or Cash Management Bank party thereto)
may
deem advisable from time to time, and (d) any collateral security, guarantee
or
right of offset at any time held by the Collateral Agent or any other Secured
Party for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Collateral Agent nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Security
Agreement or any property subject thereto. When making any demand hereunder
against any Grantor, the Collateral Agent or any other Secured Party may, but
shall be under no obligation to, make a similar demand on any Grantor or any
other Person, and any failure by the Collateral Agent or any other Secured
Party
to make any such demand or to collect any payments from any Borrower or any
Grantor or any other Person or any release of any Borrower or any Grantor or
any
other Person shall not relieve any Grantor in respect of which a demand or
collection
is not made or any Grantor not so released of its several obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Collateral Agent or any
other
Secured Party against any Grantor. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.
5.8
License
to Use Intellectual Property
.
For the
purpose of enabling the
Collateral
Agent, during the continuance of an Event of Default, to exercise rights and
remedies hereunder at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights
and
remedies, and for no other purpose, each Grantor hereby grants to the Collateral
Agent, to
the
extent such Grantor has the right to do so, an irrevocable, assignable,
non-exclusive license to use, license or sublicense any of the Intellectual
Property now owned or held, or hereafter
acquired,
by such Grantor, wherever the same may be located. To the extent permitted,
such
license
shall include access to all media in which any of the licensed items may be
recorded or
stored
and to all computer programs used for the compilation or printout
hereof.
5.9
Conflict
with Credit Agreement
.
In the
event of any conflict between the terms of this Section 5 and the Credit
Agreement, the Credit Agreement shall control.
6.
The
Collateral Agent
.
6.1
Collateral
Agent’s Appointment as Attorney-in-Fact, etc.
(a)
Each
Grantor hereby appoints, which appointment is irrevocable and coupled with
an
interest, effective upon the occurrence and during the continuance of an Event
of Default, the Collateral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and
in
the name of such Grantor or otherwise, for the purpose of carrying out the
terms
of this Security Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or desirable
to accomplish the purposes of this Security Agreement, and, without limiting
the
generality of the foregoing, each Grantor hereby gives the Collateral Agent
the
power and right, on behalf of such Grantor, either in the Collateral Agent’s
name or in the name of such Grantor or otherwise, without assent by such
Grantor, to do any or all of the following, in each case after the occurrence
and during the continuance of an Event of Default and after written notice
by
the Collateral Agent of its intent to do so:
(i)
take
possession of and endorse and collect any checks, drafts, notes, acceptances
or
other instruments for the payment of moneys due under any Account or with
respect to any other Collateral and file any claim or take any other action
or
proceeding in any court of law or equity or otherwise deemed appropriate by
the
Collateral Agent for the purpose of collecting any and all such moneys due
under
any Account or with respect to any other Collateral whenever
payable;
(ii)
[Reserved];
(iii)
pay
or
discharge taxes and Liens levied or placed on or threatened against the
Collateral;
(iv)
execute,
in connection with any sale provided for in Section 5.5, any endorsements,
assignments or other instruments of conveyance or transfer with respect to
the
Collateral;
(v)
obtain
and adjust insurance required to be maintained by such Grantor pursuant to
Section 9.3 of the Credit Agreement;
(vi)
direct
any party liable for any payment under any of the Collateral to make payment
of
any and all moneys due or to become due thereunder directly to the Collateral
Agent or as the Collateral Agent shall direct;
(vii)
ask
or
demand for, collect and receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Collateral;
(viii)
sign
and
endorse any invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications, notices
and other documents in connection with any of the Collateral;
(ix)
commence
and prosecute any suits, actions or proceedings at law or in equity in any
court
of competent jurisdiction to collect the Collateral or any portion thereof
and
to enforce any other right in respect of any Collateral;
(x)
defend
any suit, action or proceeding brought against such Grantor with respect to
any
Collateral (with such Grantor’s consent to the extent such action or its
resolution could materially affect such Grantor or any of its affiliates in
any
manner other than with respect to its continuing rights in such
Collateral);
(xi)
settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Collateral Agent may deem
appropriate (with such Grantor’s consent to the extent such action or its
resolution could materially affect such Grantor or any of its affiliates in
any
manner other than with respect to its continuing rights in such
Collateral);
(xii)
[Reserved]
(xiii)
generally,
sell, transfer, pledge and make any agreement with respect to or otherwise
deal
with any of the Collateral as fully and completely as though the Collateral
Agent were the absolute owner thereof for all purposes, and do, at the
Collateral Agent’s option and such Grantor’s expense, at any time, or from time
to time, all acts and things that the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Collateral Agent’s and
the Secured Parties’ Security Interests therein and to effect the intent of this
Security Agreement, all as fully and effectively as such Grantor might
do.
Anything
in this Section 6.1(a) to the contrary notwithstanding, the Collateral Agent
agrees that it will not exercise any rights under the power of attorney provided
for in this Section 6.1(a) unless an Event of Default shall have occurred and
be
continuing.
(b)
If
any
Grantor fails to perform or comply with any of its agreements contained herein,
the Collateral Agent, at its option, but without any obligation so to do, may
perform or comply, or otherwise cause performance or compliance, with such
agreement.
(c)
The
expenses of the Collateral Agent incurred in connection with actions undertaken
as provided in this Section 6.1, together with interest thereon at a rate per
annum equal to the highest rate per annum at which interest would then be
payable on any category of past due ABR Loans under the Credit Agreement, from
the date of payment by the Collateral Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Collateral Agent
on
demand.
(d)
Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be
done by virtue hereof. All powers, authorizations and agencies contained in
this
Security Agreement are coupled with an interest and are irrevocable until this
Security Agreement is terminated and the Security Interests created hereby
are
released.
6.2
Duty
of Collateral Agent
.
The
Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Agent accords its
own
property. Neither the Collateral Agent, any Secured Party nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
The
powers conferred on the Collateral Agent and the Secured Parties hereunder
are
solely to protect the Collateral Agent’s and the Secured Parties’ interests in
the Collateral and shall not impose any duty upon the Collateral Agent or any
Secured Party to exercise any such powers. The Collateral Agent and the Secured
Parties shall be accountable only for amounts that they actually receive as
a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor
for
any act or failure to act hereunder, except for their own gross negligence
or
willful misconduct.
6.3
Authority
of Collateral Agent
.
Each
Grantor acknowledges that the rights and responsibilities of the Collateral
Agent under this Security Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of
any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Security Agreement shall, as between
the Collateral Agent and the Secured Parties, be governed by the Credit
Agreement, and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Collateral Agent
and
the
Grantors, the Collateral Agent shall be conclusively presumed to be acting
as
agent for the applicable Secured Parties with full and valid authority so
to act
or refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
6.4
Security
Interest Absolute
.
All
rights of the Collateral Agent hereunder, the Security Interest and all
obligations of the Grantors hereunder shall be absolute and
unconditional.
6.5
Continuing
Security Interest; Assignments Under the Credit Agreement;
Release
.
(a)
This
Security Agreement shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each Grantor and the
successors and assigns thereof and shall inure to the benefit of the Collateral
Agent and the other Secured Parties and their respective successors, indorsees,
transferees and assigns until all Obligations under the Credit Documents (other
than any contingent indemnity obligations not then due) and the obligations
of
each Grantor under this Security Agreement shall have been satisfied by payment
in full, the Commitments shall be terminated and no Letters of Credit shall
be
outstanding (or all such Letters of Credit shall have been Cash Collateralized),
notwithstanding that from time to time during the term of the Credit Agreement
and any Secured Cash Management Agreement or Secured Hedge Agreement the Credit
Parties may be free from any Obligations.
(b)
A
Subsidiary Grantor shall automatically be released from its obligations
hereunder if it ceases to be a Guarantor in accordance with Section 13.1 of
the
Credit Agreement.
(c)
The
Security Interest granted hereby in any Collateral shall automatically be
released (i) to the extent provided in Section 13.1 of the Credit Agreement
and
(ii) upon the effectiveness of any written consent to the release of the
security interest granted hereby in such Collateral pursuant to Section 13.1
of
the Credit Agreement. Any such release in connection with any sale, transfer
or
other disposition of such Collateral shall result in such Collateral being
sold,
transferred or disposed of, as applicable, free and clear of the Lien and
Security Interest created hereby.
(d)
In
connection with any termination or release pursuant to paragraph (a), (b) or
(c), the Collateral Agent shall execute and deliver to any Grantor, at such
Grantor’s expense, all documents that such Grantor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 6.5 shall be without recourse to or warranty by the
Collateral Agent.
6.6
Reinstatement
.
Each
Grantor further agrees that, if any payment made by any Credit Party or other
Person and applied to the Obligations is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of Collateral
are
required to be returned by any Secured Party to such Credit Party, its estate,
trustee, receiver or any other party, including any Grantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then,
to
the
extent
of
such payment or repayment, any Lien or other Collateral securing such liability
shall be and remain in full force and effect, as fully as if such payment
had
never been made or, if prior thereto the Lien granted hereby or other Collateral
securing such liability hereunder shall have been released or terminated
by
virtue of such cancellation or surrender), such Lien or other Collateral
shall
be reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect any Lien
or
other Collateral securing the obligations of any Grantor in respect of the
amount of such payment.
6.7
Further
Assurances
.
Subject
to Section 3.2(c) hereof, each Grantor agrees that at any time and from time
to
time, at the expense of such Grantor, it will execute or otherwise authorize
the
filing of any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust
and other documents), which may be required under any applicable law, or which
the Collateral Agent or the Administrative Agent may reasonably request, in
order (x) to perfect and protect any pledge, assignment or security interest
granted or purported to be granted hereby (including the priority thereof)
or
(y) to enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
7.
Collateral
Agent As Agent
.
(a)
CIT
has
been appointed to act as the Collateral Agent under the Credit Agreement, by
the
Lenders under the Credit Agreement and, by their acceptance of the benefits
hereof, the other Secured Parties. The Collateral Agent shall be obligated,
and
shall have the right hereunder, to make demands, to give notices, to exercise
or
refrain from exercising any rights, and to take or refrain from taking any
action (including the release or substitution of Collateral), solely in
accordance with this Security Agreement and the Credit Agreement,
provided
that the
Collateral Agent shall exercise, or refrain from exercising, any remedies
provided for in Section 5 in accordance with the instructions of Required
Lenders. In furtherance of the foregoing provisions of this Section 7(a), each
Secured Party, by its acceptance of the benefits hereof, agrees that it shall
have no right individually to realize upon any of the Collateral hereunder,
it
being understood and agreed by such Secured Party that all rights and remedies
hereunder may be exercised solely by the Collateral Agent for the ratable
benefit of the applicable Lenders and Secured Parties in accordance with the
terms of this Section 7(a).
(b)
The
Collateral Agent shall at all times be the same Person that is the Collateral
Agent under the Credit Agreement. Written notice of resignation by the
Collateral Agent pursuant to Section 12.9 of the Credit Agreement shall also
constitute notice of resignation as Collateral Agent under this Security
Agreement; removal of the Collateral Agent shall also constitute removal under
this Security Agreement; and appointment of a Collateral Agent pursuant to
Section 12.9 of the Credit Agreement shall also constitute appointment of a
successor Collateral Agent under this Security Agreement. Upon the acceptance
of
any appointment as Collateral Agent under Section 12.9 of the Credit Agreement
by a successor Collateral Agent, that successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Collateral Agent under this Security Agreement,
and
the retiring or removed Collateral Agent under this Security
Agreement
shall promptly (i) transfer to such successor Collateral Agent all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Collateral Agent under this Security
Agreement, and (ii) execute and deliver to such successor Collateral Agent
or
otherwise authorize the filing of such amendments to financing statements
and
take such other actions, as may be necessary or appropriate in connection
with
the assignment to such successor Collateral Agent of the Security Interests
created hereunder, whereupon such retiring or removed Collateral Agent shall
be
discharged from its duties and obligations under this Security Agreement.
After
any retiring or removed Collateral Agent’s resignation or removal hereunder as
Collateral Agent, the provisions of this Security Agreement shall inure to
its
benefit as to any actions taken or omitted to be taken by it under this Security
Agreement while it was Collateral Agent hereunder.
(c)
The
Collateral Agent shall not be deemed to have any duty whatsoever with respect
to
any Secured Party that is a counterparty to a Secured Cash Management Agreement
or a Secured Hedge Agreement the obligations under which constitute Obligations,
unless it shall have received written notice in form and substance satisfactory
to the Collateral Agent from a Grantor or any such Secured Party as to the
existence and terms of the applicable Secured Cash Management Agreement or
Secured Hedge Agreement.
8.
Miscellaneous
.
8.1
Amendments
in Writing
.
None of
the terms or provisions of this Security Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by
the affected Grantor and the Collateral Agent in accordance with Section 13.1
of
the Credit Agreement.
8.2
Notices
.
All
notices, requests and demands pursuant hereto shall be made in accordance with
Section 13.2 of the Credit Agreement. All communications and notices hereunder
to any Subsidiary Grantor or Subsidiary Borrower shall be given to it in care
of
the Parent Borrower at the Borrower’s address set forth in Section 13.2 of the
Credit Agreement.
8.3
No
Waiver by Course of Conduct; Cumulative Remedies
.
Neither
the Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise
be
deemed to have waived any right or remedy hereunder or to have acquiesced in
any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of
the
Collateral Agent or any other Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent or any other Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right
or
remedy that the Collateral Agent or such other Secured Party would otherwise
have on any future occasion. The rights, remedies, powers and privileges herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
8.4
Enforcement
Expenses; Indemnification
.
(a)
Each
Grantor agrees to pay any and all reasonable expenses (including all reasonable
fees and disbursements of counsel) that may be paid or incurred by any Secured
Party in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, such Grantor under this
Security Agreement.
(b)
Each
Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes that may be
payable or determined to be payable with respect to any of the Collateral or
in
connection with any of the transactions contemplated by this Security
Agreement.
(c)
Each
Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Security Agreement to the extent a
Borrower would be required to do so pursuant to Section 13.5 of the Credit
Agreement.
(d)
The
agreements in this Section 8.4 shall survive repayment of the Obligations and
all other amounts payable under the Credit Agreement and the other Credit
Documents.
8.5
Successors
and Assigns
.
The
provisions of this Security Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Grantor may assign, transfer or delegate any
of
its rights or obligations under this Security Agreement without the prior
written consent of the Collateral Agent except pursuant to a transaction
permitted by the Credit Agreement.
8.6
Counterparts
.
This
Security Agreement may be executed by one or more of the parties to this
Security Agreement on any number of separate counterparts (including by
facsimile or other electronic transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the
copies of this Security Agreement signed by all the parties shall be lodged
with
the Collateral Agent and the Parent Borrower.
8.7
Severability
.
Any
provision of this Security Agreement that is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction. The parties hereto shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of
the invalid, illegal or unenforceable provisions.
8.8
Section
Headings
.
The
Section headings used in this Security Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
8.9
Integration
.
This
Security Agreement together with the other Credit Documents represents the
agreement of each of the Grantors with respect to the subject matter hereof
and
there are no promises, undertakings, representations or warranties by the
Collateral Agent or any other Secured Party relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Credit
Documents.
8.10
GOVERNING
LAW
.
THIS
SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK.
8.11
Submission
To Jurisdiction Waivers
.
Each
party hereto hereby irrevocably and unconditionally:
(a)
submits
for itself and its property in any legal action or proceeding relating to this
Security Agreement and the other Credit Documents to which it is a party, or
for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b)
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(c)
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address referred
to in Section 8.2 or at such other address of which such Person shall have
been notified pursuant thereto;
(d)
agrees
that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by
law
or shall limit the right of any party hereto (or any Secured Party) to sue
in
any other jurisdiction; and
(e)
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section 8.11
any
special, exemplary, punitive or consequential damages.
8.12
Acknowledgments
.
Each
party hereto hereby acknowledges that:
(a)
it
has
been advised by counsel in the negotiation, execution and delivery of this
Security Agreement and the other Credit Documents to which it is a
party;
(b)
neither
the Collateral Agent nor any other Agent or Secured Party has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Security Agreement or any of the other Credit Documents, and the
relationship between the Grantors, on the one hand, and the Collateral Agent,
each other Agent and the other Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c)
no
joint
venture is created hereby or by the other Credit Documents or otherwise exists
by virtue of the transactions contemplated hereby among the Lenders, the Agents
and any other Secured Party or among the Grantors and the Lenders, the Agents
and any other Secured Party.
8.13
Additional
Grantors
.
Each
Subsidiary of the Parent Borrower that is required to become a party to this
Security Agreement pursuant to Section 9.11 of the Credit Agreement shall become
a Grantor, with the same force and effect as if originally named as a Grantor
herein, for all purposes of this Security Agreement upon execution and delivery
by such Subsidiary of a written supplement substantially in the form of
Annex
A
hereto.
The execution and delivery of any instrument adding an additional Grantor as
a
party to this Security Agreement shall not require the consent of any other
Grantor hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new Grantor
as a party to this Security Agreement.
8.14
WAIVER
OF JURY TRIAL
.
EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT, ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15
Intercreditor
Agreement
.
Notwithstanding
anything herein to the contrary, the liens and security interests granted to
the
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by the Collateral Agent hereunder, in each case, with respect to the
Collateral are subject to the limitations and provisions of the Intercreditor
Agreement, dated as of July 6, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “
Intercreditor
Agreement
”),
among
Citicorp North America, Inc., as Collateral Agent under the Term Loan Agreement,
the Collateral Agent, and certain other Persons party or that may become party
thereto from time to time, and the Grantors identified therein. In the event
of
any conflict between the terms of the Intercreditor Agreement and the terms
of
this Agreement with respect to the Collateral, the terms of the Intercreditor
Agreement shall govern and control. Any provision of this Agreement to the
contrary notwithstanding, (a) no Grantor shall be required to act or refrain
from acting in a manner that is inconsistent with the terms and provisions
of
the Intercreditor Agreement and (b) prior to the satisfaction and discharge
in
full of the Term Loan Obligations (as defined in the Intercreditor Agreement),
no Grantor shall be required to act or refrain from acting with respect to
any
Collateral if compliance by such Grantor with such
requirement
would result in a breach of or constitute a default under any Term Loan Document
(as defined in the Intercreditor Agreement).
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to he
duly
executed and delivered by its duly authorized officer or other representative
as
of the day and year first above written.
DOLLAR
GENERAL
CORPORATION, as
Grantor
By:
/s/ Wade
Smith
DG
RETAIL, LLC, as
Grantor
By:
/s/
Wade
Smith
|
Dollar
|
General
Co
rporation
|
Wade Smith
Treasurer
DOLGENCORP,
INC., as
Grantor
By:
/s/ Wade
Smith
DOLGENCORP
OF NEW
YORK, INC., as
Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
S
-1
ABL
Security Agreement Signature Pages
DG
TRANSPORTATION,
INC., as Grantor
By:
/s/ Wade
Smith
DG
LOGISTICS, LLC, as
Grantor
By:
/s/
Wade
Smith
DG
Transportation,
Inc. as Manager
Wade
Smith
Treasurer
DGC
PROPERTIES LLC,
as Grantor
Dolgencorp, Inc., as sole member
Wade Smith
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as
Grantor
SUN-DOLLAR,
L.P., as
Grantor
By:
/s/ Wade Smith
South
Boston
Holdings, Inc. general partner
Wade Smith
Treasurer
Dolgencorp, Inc. l
imited
partner
Wade Smith
Treasurer
S
-2
ABL
Security Agreement Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Grantor
By:
Sun-Dollar,
L.P. (sole member)
By:
/s/ Wade Smith
South Boston Holdings, Inc. -
-
its
general
partner
Wade Smith
Treasurer
DG
PROMOTIONS, INC.,
as Grantor
By:
/s/ Wade Smith
Name: WadeSmith
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Grantor
By:
/s/ Wade
Smith
Name:
Wade
Smith
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Grantor
By:
/s/ Wade Smith
Name:
Wade Smith
Title:
Treasurer
S
-3
ABL
Security Agreement Signature Pages
DOLLAR
GENERAL
PARTNERS, as Grantor
By:
/s/ Wade
Smith
Dollar
General Corporation
-
its
authorized
general
partner
Wade Smith
Treasurer
/s/ Wade Smith
By:
Dollar
General Merchandising, Inc.
—
its
general partner
Wade
Smith
Treasurer
DGC
PROPERTIES OF
KENTUCKY LLC,
as
Grantor
By:
/s/ Wade
Smith
Dollar
General
Partners as sole member
|
By:
|
Dollar
General Corporation
-
its
authorized general partner
|
Wade Smith
Treasurer
S
-4
ABL
Security Agreement Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By:
/s/ Francis
P.
Garvin
Name: Francis P. Garvin
Title:
Director
S-5
ABL
Security Agreement Signature Pages
SCHEDULE
I TO THE
SECURITY
AGREEMENT
Filing
Offices
DEBTOR
|
FILING
OFFICE
|
Dollar
General Corporation
|
Tennessee
SOS
|
DG
Retail, LLC
|
Tennessee
SOS
|
DG
Transportation, Inc.
|
Tennessee
SOS
|
DG
Logistics, LLC
|
Tennessee
SOS
|
DG
Promotions, Inc.
|
Tennessee
SOS
|
Dollar
General Merchandising, Inc.
|
Tennessee
SOS
|
Dollar
General Partners
|
Tennessee
SOS
|
Dolgencorp,
Inc.
|
Kentucky
SOS
|
Dolgencorp
of New York, Inc.
|
Kentucky
SOS
|
Dolgencorp
of Texas, Inc.
|
Kentucky
SOS
|
DGC
Properties LLC
|
Delaware
SOS
|
South
Boston Holdings, Inc.
|
Delaware
SOS
|
South
Boston FF&E, LLC
|
Delaware
SOS
|
Dollar
General Investment, Inc.
|
Delaware
SOS
|
DGC
Properties of Kentucky LLC
|
Delaware
SOS
|
Sun-Dollar,
L.P.
|
California
SOS
|
SCHEDULE
II TO THE
SECURITY
AGREEMENT
Grantor
Information
Name
of Debtor/Grantor
|
Type
of Organization
|
Jurisdiction
of Organization/Formation
|
F.E.I.N.
/ T.I.N.
|
Organizational
Identification Number
|
Dollar
General Corporation
|
Corporation
|
Tennessee
|
61-0502302
|
Control
Number 0351611
|
DG
Retail, LLC
|
Limited
Liability Company
|
Tennessee
|
36-4577242
|
Control
Number 0498077
|
Dolgencorp,
Inc.
|
Corporation
|
Kentucky
|
61-0852764
|
Control
Number 0017665
|
Dolgencorp
of New York, Inc.
|
Corporation
|
Kentucky
|
62-1829863
|
Control
Number 0499060
|
Dolgencorp
of Texas, Inc.
|
Corporation
|
Kentucky
|
61-1193136
|
Control
Number 0268821
|
DG
Transportation, Inc.
|
Corporation
|
Tennessee
|
37-1517488
|
Control
Number 0486177
|
DG
Logistics, LLC
|
Limited
Liability Company
|
Tennessee
|
62-1805098
|
Control
Number 0381549
|
DGC
Properties LLC
|
Limited
Liability Company
|
Delaware
|
36-4498859
|
Control
Number 3530337
|
South
Boston Holdings, Inc.
|
Corporation
|
Delaware
|
20-5220571
|
Control
Number 4179362
|
Sun-Dollar,
L.P.
|
Limited
Partnership
|
California
|
95-4629930
|
199711200016
|
South
Boston FF&E, LLC
|
Limited
Liability Company
|
Delaware
|
26-0411224
|
Control
Number 4287970
|
DG
Promotions, Inc.
|
Corporation
|
Tennessee
|
62-1792083
|
Control
Number 0375322
|
Dollar
General Investment, Inc.
|
Corporation
|
Delaware
|
48-1268966
|
Control
Number 3535431
|
Dollar
General Merchandising, Inc.
|
Corporation
|
Tennessee
|
82-0577749
|
Control
Number: 0437967
|
Dollar
General Partners
|
General
Partnership
|
Kentucky
|
61-1193137
|
Control
Number 0589039
|
DGC
Properties of Kentucky LLC
|
Limited
Liability Company
|
Delaware
|
37-1432210
|
Control
Number 3530336
|
SCHEDULE
1 TO THE
SECURITY
AGREEMENT
MATERIAL
COPYRIGHT LICENSES
None.
SCHEDULE
2 TO THE
SECURITY
AGREEMENT
COPYRIGHTS
Registered
Owner/Grantor
|
Title
|
Registration
Number
|
Dollar
General Intellectual Property LP
|
Dollar
General
|
VA-1-074-378
|
Dollar
General Intellectual Property LP
|
Birdhouse
in the sky
|
VA-1-084-913
|
Dollar
General Intellectual Property LP
|
Play
ball
|
VA-1-084-914
|
Dollar
General Intellectual Property LP
|
Southern
magnolia
|
VA-1-084915
|
Dollar
General Intellectual Property LP
|
Greater
Cumberland logo
|
VA-1-101-214
|
Dollar
General Intellectual Property LP
|
Two
large magnolias design
|
VA-1-104-452
|
Dollar
General Intellectual Property LP
|
Two
magnolias within a circle
|
VAu-332-786
|
Dollar
General Intellectual Property LP
|
Six
magnolias in a ring
|
VAu-387-072
|
Dollar
General Intellectual Property LP
|
Two
magnolias
|
VAu-387-073
|
Dollar
General Intellectual Property LP
|
Four
magnolias in a band
|
VAu-439-205
|
Dollar
General Intellectual Property LP
|
Two
magnolias within a circle
|
VAu-501-223
|
Dollar
General Intellectual Property LP
|
Sun
& shade, you’ve got it made
|
VAu-502-998
|
Dollar
General Intellectual Property LP
|
Iris
collection
|
VAu-515-355
|
Dollar
General Intellectual Property LP
|
Beautiful
day
|
VAu-515-356
|
Dollar
General Intellectual Property LP
|
Snowman
family
|
VAu-515-357
|
Dollar
General Intellectual Property LP
|
Checkered
bear design
|
VAu-515-358
|
Dollar
General Intellectual Property LP
|
Fish
bowl
|
VAu-515-359
|
Dollar
General Intellectual Property LP
|
Snow
day
|
VAu-515-360
|
Dollar
General Intellectual Property LP
|
Weather
vane
|
VAu-515-361
|
Dollar
General Intellectual Property LP
|
Americana
Christmas
|
VAu-515-362
|
Dollar
General Intellectual Property LP
|
American
flag
|
VAu-515-363
|
Dollar
General Intellectual Property LP
|
Summertime
watermelon
|
VAu-515-364
|
SCHEDULE
3 TO THE
SECURITY
AGREEMENT
MATERIAL
PATENT LICENSES
None.
SCHEDULE
4 TO THE
SECURITY
AGREEMENT
PATENTS
None.
SCHEDULE
5 TO THE
SECURITY
AGREEMENT
MATERIAL
TRADEMARK LICENSES
None.
SCHEDULE
6 TO THE
SECURITY
AGREEMENT
TRADEMARKS
U.S.
Trademarks
Debtor/Grantor
|
Title
|
Serial
/ Registration No.
|
Dollar
General Merchandising, Inc.
|
SAVE
TIME. SAVE MONEY. EVERY DAY.
|
3,217,925
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
3,174,687
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
3,159,752
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
3,118,060
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL AND DESIGN
|
2,947,983
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,982
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,981
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,947,979
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL MARKET
|
2,912,893
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
2,673,316
|
Dollar
General Merchandising, Inc.
|
KISSY
KISSY HUG HUG
|
2,599,690
|
Dollar
General Merchandising, Inc.
|
FINE
& DANDY
|
2,522,829
|
Dollar
General Merchandising, Inc.
|
VICTORIAN
BEAUTY
|
2,576,769
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,556,093
|
Dollar
General Merchandising, Inc.
|
SAVE
TIME. SAVE MONEY. DOLLAR GENERAL.
|
2,602,816
|
Dollar
General Merchandising, Inc.
|
HOLIDAY
STYLE
|
2,614,861
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
2,679,921
|
Dollar
General Merchandising, Inc.
|
DG
GUARANTEE
|
2,433,937
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
2,412,180
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
2,355,987
|
Dollar
General Merchandising, Inc.
|
DG
|
2,385,253
|
Dollar
General Merchandising, Inc.
|
MY
PAL BUILDING BLOCKS FOR LITTLE WARDROBES AND DESIGN
|
2,546,014
|
Dollar
General Merchandising, Inc.
|
KITCHEN
ELEMENTS
|
2,589,304
|
Dollar
General Merchandising, Inc.
|
A
BETTER LIFE FOR EVERYONE!
|
2,564,327
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
2,840,528
|
Dollar
General Merchandising, Inc.
|
GOT
A MINUTE? GET A LOT!
|
2,534,603
|
Dollar
General Merchandising, Inc.
|
POWERIZE
|
2,402,825
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL EVERY DAY AND DESIGN
|
2,478,427
|
Dollar
General Merchandising, Inc.
|
DOLLAR
$1 EVERY DAY AND DESIGN
|
2,443,284
|
Dollar
General Merchandising, Inc.
|
STOW
AWAYS
|
2,418,285
|
Dollar
General Merchandising Inc.
|
COUNTRY
ELEMENTS
|
2,517,967
|
|
|
|
Dollar
General Merchandising, Inc.
|
EZSTORE
|
78/642,660
|
Dollar
General Merchandising, Inc.
|
SUNRISE
HILL
|
78/467,058
|
Dollar
General Merchandising, Inc.
|
DG
|
2,499,318
|
Dollar
General Merchandising, Inc.
|
PRO
LINE
|
1,433,962
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL EVERY DAY
|
2,478,358
|
Dollar
General Merchandising, Inc.
|
FAMILY
TRADITIONS
|
2,553,059
|
Dollar
General Merchandising, Inc.
|
FAMILY
TRADITIONS
|
2.488,144
|
Dollar
General Merchandising, Inc.
|
DG
GUARANTEE
|
2,702,790
|
Dollar
General Merchandising, Inc.
|
AMERICAN
VALUE
|
2,654,637
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,400,609
|
Dollar
General Merchandising, Inc.
|
CROSSBOW
|
2,327,189
|
Dollar
General Merchandising, Inc.
|
CROSSBOW
|
2,388,304
|
|
|
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
2,317,225
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS AND DESIGN
|
2,258,138
|
Dollar
General Merchandising, Inc.
|
DG
|
2,130,040
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL AND DESIGN
|
1,972,697
|
Dollar
General Merchandising, Inc.
|
PREMIER
INTERNATIONAL
|
1,705,134
|
Dollar
General Merchandising, Inc.
|
PENNY
LANE
|
1,726,693
|
Dollar
General Merchandising, Inc.
|
LAURA
KATHERINE
|
1,735,722
|
Dollar
General Merchandising, Inc.
|
THE
TOWN’S MOST UNUSUAL STORE
|
1,642,403
|
Dollar
General Merchandising, Inc.
|
EVERY
DAY IS DOLLAR DAY!...AT YOUR DOLLAR GENERAL STORE
|
1,651,816
|
Dollar
General Merchandising, Inc.
|
GENERAL
STORY
|
1,494,217
|
Dollar
General Merchandising, Inc.
|
S
STORY
|
1,493,097
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL
|
0,881,060
|
Dollar
General Merchandising, Inc.
|
UNI-LAB
|
1,952,315
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS
|
1,752,567
|
Dollar
General Merchandising, Inc.
|
MY
PAL
|
1,791,692
|
Dollar
General Merchandising, Inc.
|
OPEN
TRAILS
|
1,424,943
|
Dollar
General Merchandising, Inc.
|
DOLLAR
GENERAL OUR NAME SAYS IT ALL AND DESIGN
|
2,210,926
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
2,498,548
|
Dollar
General Merchandising, Inc.
|
CLOVER
VALLEY
|
833,446
|
Foreign
Trademarks
Title
|
Serial/
Registration No.
|
Country
|
DOLLAR
GENERAL
|
1,241,198
|
Canada
|
DOLLAR
GENERAL
|
3,846,573
|
European
Union (CTM)
|
DOLLAR
GENERAL
|
2004B01969
|
Hong
Kong
|
DOLLAR
GENERAL in
Chinese
Characters
|
300042443
|
Hong
Kong
|
DOLLAR
GENERAL
|
477,587
|
Mexico
|
DOLLAR
GENERAL
|
892,930
|
Mexico
|
EXHIBIT
4.8
EXECUTION
VERSION
INDENTURE
Among
BUCK
ACQUISITION CORP.,
DOLLAR
GENERAL CORPORATION,
THE
GUARANTORS NAMED ON SCHEDULE I HERETO
and
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Trustee
10.625%
SENIOR NOTES DUE 2015
CROSS-REFERENCE
TABLE*
Trust
Indenture Act Section
|
Indenture
Section
|
310
(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(a)(5)
|
7.10
|
(b)
|
7.10
|
(c)
|
N.A.
|
311
(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312
(a)
|
2.05
|
(b)
|
12.03
|
(c)
|
12.03
|
313
(a)
|
7.06;
12.02
|
(b)(1)
|
N.A.
|
(b)(2)
|
7.06;
7.07
|
(c)
|
7.06;
12.02
|
(d)
|
7.06
|
314
(a)
|
4.03;
12.02; 12.05
|
(b)
|
N.A.
|
(c)(1)
|
12.04
|
(c)(2)
|
12.04
|
(c)(3)
|
N.A.
|
(e)
|
12.05
|
(f)
|
N.A.
|
315
(a)
|
7.01
|
(b)
|
7.05;
12.02.
|
(c)
|
7.01
|
(d)
|
7.01
|
(e)
|
6.14
|
316
(a)(last
sentence)
|
2.09
|
(a)(1)(A)
|
6.05
|
(a)(1)(B)
|
6.04
|
(a)(2)
|
N.A.
|
(b)
|
6.07
|
(c)
|
9.04
|
317
(a)(1)
|
6.08
|
(a)(2)
|
6.12
|
(b)
|
2.04
|
318
(a)
|
12.01
|
(b)
|
N.A.
|
(c)
|
12.01
|
N.A.
means not applicable.
*
This
Cross-Reference Table is not part of the Indenture.
|
TABLE
OF CONTENTS
|
|
|
|
Page
|
|
|
|
|
ARTICLE
1
|
|
|
|
|
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
|
|
|
|
Section
1.01
|
Definitions
|
1
|
Section
1.02
|
Other
Definitions
|
32
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act
|
33
|
Section
1.04
|
Rules
of Construction.
|
33
|
Section
1.05
|
Acts
of Holders
|
34
|
|
|
|
|
ARTICLE
2
|
|
|
|
|
|
THE
NOTES
|
|
|
|
|
Section
2.01
|
Form
and Dating; Terms
|
35
|
Section
2.02
|
Execution
and Authentication
|
36
|
Section
2.03
|
Registrar
and Paying Agent
|
37
|
Section
2.04
|
Paying
Agent to Hold Money in Trust
|
37
|
Section
2.05
|
Holder
Lists
|
37
|
Section
2.06
|
Transfer
and Exchange
|
37
|
Section
2.07
|
Replacement
Notes
|
48
|
Section
2.08
|
Outstanding
Notes
|
48
|
Section
2.09
|
Treasury
Notes
|
49
|
Section
2.10
|
Temporary
Notes
|
49
|
Section
2.11
|
Cancellation
|
49
|
Section
2.12
|
Defaulted
Cash Interest
|
49
|
Section
2.13
|
CUSIP
and ISIN Numbers
|
50
|
|
|
|
|
ARTICLE
3
|
|
|
|
|
|
REDEMPTION
|
|
|
|
|
Section
3.01
|
Notices
to Trustee
|
50
|
Section
3.02
|
Selection
of Notes to Be Redeemed or Purchased
|
50
|
Section
3.03
|
Notice
of Redemption
|
51
|
Section
3.04
|
Effect
of Notice of Redemption
|
52
|
Section
3.05
|
Deposit
of Redemption or Purchase Price
|
52
|
Section
3.06
|
Notes
Redeemed or Purchased in Part
|
52
|
Section
3.07
|
Optional
Redemption
|
53
|
Section
3.08
|
Mandatory
Redemption
|
53
|
Section
3.09
|
Asset
Sales
|
54
|
|
|
Page
|
|
|
|
|
ARTICLE
4
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
Section
4.01
|
Payment
of Notes
|
55
|
Section
4.02
|
Maintenance
of Office or Agency
|
56
|
Section
4.03
|
Reports
and Other Information
|
56
|
Section
4.04
|
Compliance
Certificate
|
57
|
Section
4.05
|
Taxes
|
58
|
Section
4.06
|
Stay,
Extension and Usury Laws
|
58
|
Section
4.07
|
Limitation
on Restricted Payments
|
58
|
Section
4.08
|
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
|
65
|
Section
4.09
|
Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock
and
Preferred Stock
|
67
|
Section
4.10
|
Asset
Sales
|
72
|
Section
4.11
|
Transactions
with Affiliates
|
75
|
Section
4.12
|
Liens
|
77
|
Section
4.13
|
Corporate
Existence
|
77
|
Section
4.14
|
Offer
to Repurchase upon Change of Control
|
78
|
Section
4.15
|
Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries
|
80
|
ARTICLE
5
SUCCESSORS
Section
5.01
|
Merger,
Consolidation or Sale of All or Substantially All Assets
|
80
|
Section
5.02
|
Successor
Corporation Substituted
|
82
|
ARTICLE
6
DEFAULTS
AND REMEDIES
Section
6.01
|
Events
of Default
|
83
|
Section
6.02
|
Acceleration
|
85
|
Section
6.03
|
Other
Remedies
|
85
|
Section
6.04
|
Waiver
of Past Defaults
|
85
|
Section
6.05
|
Control
by Majority
|
86
|
Section
6.06
|
Limitation
on Suits
|
86
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment
|
86
|
Section
6.08
|
Collection
Suit by Trustee
|
86
|
Section
6.09
|
Restoration
of Rights and Remedies
|
87
|
Section
6.10
|
Rights
and Remedies Cumulative
|
87
|
Section
6.11
|
Delay
or Omission Not Waiver
|
87
|
Section
6.12
|
Trustee
May File Proofs of Claim
|
87
|
Section
6.13
|
Priorities
|
88
|
Section
6.14
|
Undertaking
for Costs
|
88
|
Page
ARTICLE
7
TRUSTEE
Section
7.01
|
Duties
of Trustee
|
88
|
Section
7.02
|
Rights
of Trustee
|
89
|
Section
7.03
|
Individual
Rights of Trustee
|
90
|
Section
7.04
|
Trustee’s
Disclaimer
|
91
|
Section
7.05
|
Notice
of Defaults
|
91
|
Section
7.06
|
Reports
by Trustee to Holders of the Notes
|
91
|
Section
7.07
|
Compensation
and Indemnity
|
91
|
Section
7.08
|
Replacement
of Trustee
|
92
|
Section
7.09
|
Successor
Trustee by Merger, etc.
|
93
|
Section
7.10
|
Eligibility;
Disqualification
|
93
|
Section
7.11
|
Preferential
Collection of Claims Against Issuer
|
93
|
ARTICLE
8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
8.01
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
93
|
Section
8.02
|
Legal
Defeasance and Discharge
|
94
|
Section
8.03
|
Covenant
Defeasance
|
94
|
Section
8.04
|
Conditions
to Legal or Covenant Defeasance
|
95
|
Section
8.05
|
Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions
|
96
|
Section
8.06
|
Repayment
to Issuer
|
97
|
Section
8.07
|
Reinstatement
|
97
|
ARTICLE
9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01
|
Without
Consent of Holders of Notes
|
97
|
Section
9.02
|
With
Consent of Holders of Notes
|
98
|
Section
9.03
|
Compliance
with Trust Indenture Act
|
100
|
Section
9.04
|
Revocation
and Effect of Consents
|
100
|
Section
9.05
|
Notation
on or Exchange of Notes
|
100
|
Section
9.06
|
Trustee
to Sign Amendments, etc
|
100
|
Section
9.07
|
Payment
for Consent
|
101
|
ARTICLE
10
GUARANTEES
Section
10.01
|
Guarantee
|
101
|
Section
10.02
|
Limitation
on Guarantor Liability
|
103
|
Section
10.03
|
Execution
and Delivery
|
103
|
Section
10.04
|
Subrogation
|
103
|
|
|
|
|
|
Page
|
|
|
|
Section
10.05
|
Benefits
Acknowledged
|
104
|
Section
10.06
|
Release
of Guarantees
|
104
|
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01
|
Satisfaction
and Discharge
|
104
|
Section
11.02
|
Application
of Trust Money
|
105
|
ARTICLE
12
MISCELLANEOUS
Section
12.01
|
Trust
Indenture Act Controls
|
106
|
Section
12.02
|
Notices
|
106
|
Section
12.03
|
Communication
by Holders of Notes with Other Holders of Notes
|
107
|
Section
12.04
|
Certificate
and Opinion as to Conditions Precedent
|
107
|
Section
12.05
|
Statements
Required in Certificate or Opinion
|
107
|
Section
12.06
|
Rules
by Trustee and Agents
|
108
|
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
108
|
Section
12.08
|
Governing
Law
|
108
|
Section
12.09
|
Waiver
of Jury Trial
|
108
|
Section
12.10
|
Force
Majeure
|
108
|
Section
12.11
|
No
Adverse Interpretation of Other Agreements
|
108
|
Section
12.12
|
Successors
|
108
|
Section
12.13
|
Severability
|
109
|
Section
12.14
|
Counterpart
Originals
|
109
|
Section
12.15
|
Table
of Contents, Headings, etc
|
109
|
Section
12.16
|
Qualification
of Indenture
|
109
|
SCHEDULES
Schedule
I
Guarantors
EXHIBITS
Exhibit
A
Form
of
Note
Exhibit
B
Form
of
Certificate of Transfer
Exhibit
C
Form
of
Certificate of Exchange
Exhibit
D
Form
of
Supplemental Indenture to Be Delivered by Subsequent Guarantors
INDENTURE,
dated as of July 6, 2007, among Buck Acquisition Corp, a Tennessee corporation
(the “
Issuer
”),
Dollar General Corporation, a Tennessee corporation (“Dollar General”), the
Guarantors (as defined herein) listed on the signature pages hereto and Wells
Fargo Bank, National Association, as Trustee.
The
Notes
(as defined herein) are being issued and sold in connection with the merger
of
the Issuer with and into Dollar General, whereby upon consummation of the
merger, Dollar General will continue as the surviving corporation and thereby
will assume all of the obligations of this Indenture, pursuant to an agreement
and plan of merger dated March 11, 2007 (the “
Merger
Agreement
”)
by and
among Buck Holdings, L.P., a Delaware limited partnership, the Issuer and Dollar
General.
W
I
T
N
E
S
S
E
T
H
WHEREAS,
the Issuer has duly authorized the creation of an issue of $1,175,000,000
aggregate principal amount of 10.625% Senior Notes due 2015 (the “
Initial
Notes
”);
and
WHEREAS,
the Issuer and each of the Guarantors has duly authorized the execution and
delivery of this Indenture.
NOW,
THEREFORE, the Issuer, the Guarantors and the Trustee agree as follows for
the
benefit of each other and for the equal and ratable benefit of the Holders
of
the Notes.
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01
|
Definitions.
|
“
144A
Global Note
”
means
a
Global Note substantially in the form of
Exhibit
A
attached
hereto, as the case may be, bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the
name
of, the Depositary or its nominee that will be issued in a denomination equal
to
the outstanding principal amount of the Notes sold in reliance on Rule
144A.
“
ABL
Collateral Agent
”
means
The CIT Group/Business Credit Inc., in its capacity as administrative agent
and
collateral agent for the lenders and other secured parties under the ABL
Facility and the credit, guarantee and security documents governing the ABL
Obligations, together with its successors and permitted assigns under the ABL
Facility exercising substantially the same rights and powers.
“
ABL
Facility
”
means
the Asset-Based Revolving Credit Agreement dated as of the Issue Date by and
among the Issuer, the lenders party thereto in their capacities as lenders
thereunder and The CIT Group/Business Credit Inc., as Administrative Agent,
including any guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements, refundings or refinancings
thereof and any indentures, notes, debentures or credit facilities or commercial
paper facilities with banks or other institutional lenders or investors that
replace, refund or refinance any part of the loans, notes, other credit
facilities or commitments thereunder, including any such replacement, refunding
or refinancing facility or
indenture
that increases the amount borrowable thereunder or alters the maturity thereof
(
provided
that
such increase in borrowings is permitted under Section 4.09
hereof).
“
ABL
Facility Cap
”
means
an amount equal to the greater of (x) $1,125.0 million and (y) the sum of
(i) 85% of the net orderly liquidation value as determined in good faith by
the
Issuer of inventory of the Issuer and each Guarantor and (ii) 90% of all credit
card receivables of the Issuer and each Guarantor determined in accordance
with
GAAP.
“
ABL
Obligations
”
means
Obligations under the ABL Facility.
“
ABL
Secured Parties
”
means
each of (i) the ABL Collateral Agent on behalf of itself and the lenders
under the ABL Facility and lenders or their affiliates counterparty to related
Hedging Obligations and (ii) each other holder of ABL
Obligations.
“
Acquired
Indebtedness
”
means,
with respect to any specified Person,
(1)
Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and
(2)
Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“
Additional
Notes
”
means
additional Notes (other than the Initial Notes and other than Exchange Notes
for
such Initial Notes) issued from time to time under this Indenture in accordance
with Sections 2.01 and 4.09 hereof.
“
Affiliate
”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
“
Agent
”
means
any Registrar or Paying Agent.
“
Applicable
Premium
”
means,
with respect to any Note on any Redemption Date, the greater of:
(1)
1.0%
of
the principal amount of such Note; and
(2)
the
excess, if any, of (a) the present value at such Redemption Date of
(i) the redemption price of such Note at July 15, 2011 (such redemption
price being set forth in the tables appearing under Section 3.07(c)),
plus
(ii) all required interest payments due on such Note through July 15, 2011
(excluding accrued but unpaid interest to the Redemption Date), computed using
a
discount rate equal to the Treasury Rate as of such Redemption Date plus 50
basis points; over (b) the principal amount of such Note.
“
Applicable
Procedures
”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depositary, Euroclear and/or
Clearstream that apply to such transfer or exchange.
“
Asset
Sale
”
means:
(1)
the
sale,
conveyance, transfer or other disposition, whether in a single transaction
or a
series of related transactions, of property or assets (including by way of
a
Sale and Lease-Back Transaction) of the Issuer or any of its Restricted
Subsidiaries (each referred to in this definition as a “
disposition
”);
or
(2)
the
issuance or sale of Equity Interests of any Restricted Subsidiary, whether
in a
single transaction or a series of related transactions (other than Preferred
Stock of Restricted Subsidiaries issued in compliance with Section 4.09
hereof);
in
each
case, other than:
(a)
any
disposition of Cash Equivalents or Investment Grade Securities or obsolete
or
worn out equipment in the ordinary course of business or any disposition of
inventory or goods (or other assets) held for sale in the ordinary course of
business;
(b)
the
disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to the provisions described under Section 5.01 hereof or
any
disposition that constitutes a Change of Control pursuant to this
Indenture;
(c)
the
making of any Restricted Payment or Permitted Investment that is permitted
to be
made, and is made, under Section 4.07 hereof;
(d)
any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of related transactions with an
aggregate fair market value of less than $25.0 million;
(e)
any
disposition of property or assets or issuance of securities by a Restricted
Subsidiary of the Issuer to the Issuer or by the Issuer or a Restricted
Subsidiary of the Issuer to another Restricted Subsidiary of the
Issuer;
(f)
to
the
extent allowable under Section 1031 of the Code or any comparable or
successor provision, any exchange of like property (excluding any boot thereon)
for use in a Similar Business;
(g)
the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;
(h)
any
issuance or sale of Equity Interests in, or Indebtedness or other securities
of,
an Unrestricted Subsidiary;
(i)
foreclosures
on assets;
(j)
sales
of
accounts receivable, or participations therein, in connection with the ABL
Facility or any Receivables Facility;
(k)
any
financing transaction with respect to property built or acquired by the Issuer
or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back
Transactions and asset securitizations permitted by this Indenture;
(l)
dispositions
in the ordinary course of business by any Restricted Subsidiary engaged in
the
insurance business in order to provide insurance to the Issuer and its
Subsidiaries;
(m)
the
unwinding of any Hedging Obligations; and
(n)
sales,
transfers and other dispositions of Investments in joint ventures to the extent
required by, or made pursuant to, customary buy/sell arrangements between the
joint venture parties set forth in joint venture arrangements and similar
binding arrangements.
“
Bankruptcy
Code
”
means
Title 11 of the United States Code, as amended.
“
Bankruptcy
Law
”
means
the Bankruptcy Code and any similar federal, state or foreign law for the relief
of debtors.
“
Broker-Dealer
”
has
the
meaning set forth in the Registration Rights Agreement.
“
Business
Day
”
means
each day which is not a Legal Holiday.
“
Capital
Stock
”
means:
(1)
in
the
case of a corporation, corporate stock;
(2)
in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3)
in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4)
any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“
Capitalized
Lease Obligation
”
means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.
“
Capitalized
Software Expenditures
”
means,
for any period, the aggregate of all expenditures (whether paid in cash or
accrued as liabilities) by a Person and its Restricted Subsidiaries during
such
period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to
be
reflected as capitalized costs on the consolidated balance sheet of a Person
and
its Restricted Subsidiaries.
“
Cash
Equivalents
”
means:
(1)
United
States dollars;
(2)
euro
or
any national currency of any participating member state of the EMU or such
local
currencies held by the Issuer and its Restricted Subsidiaries from time to
time
in the ordinary course of business;
(3)
securities
issued or directly and fully and unconditionally guaranteed or insured by the
U.S. government (or any agency or instrumentality thereof the securities of
which are unconditionally guaranteed as a full faith and credit obligation
of
the U.S. government) with maturities of 24 months or less from the date of
acquisition;
(4)
certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus of not less than $500.0 million
in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent
as
of the date of determination) in the case of non-U.S. banks;
(5)
repurchase
obligations for underlying securities of the types described in clauses
(3) and (4) entered into with any financial institution meeting the
qualifications specified in clause (4) above;
(6)
commercial
paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;
(7)
marketable
short-term money market and similar securities having a rating of at least
P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another Rating Agency), and in each case maturing within 24 months after
the date of creation thereof;
(8)
investment
funds investing 95% of their assets in securities of the types described in
clauses (1) through (7) above;
(9)
readily
marketable direct obligations issued by any state, commonwealth or territory
of
the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P with maturities
of 24 months or less from the date of acquisition;
(10)
Indebtedness
or Preferred Stock issued by Persons with a rating of A or higher from S&P
or A2 or higher from Moody’s with maturities of 24 months or less from the
date of acquisition; and
(11)
Investments
with average maturities of 24 months or less from the date of acquisition in
money market funds rated AAA- (or the equivalent thereof) or better by S&P
or Aaa3 (or the equivalent thereof) or better by Moody’s.
Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) and (2) above;
provided
that
such amounts are
converted
into any currency listed in clauses (1) and (2) as promptly as
practicable and in any event within ten Business Days following the receipt
of
such amounts.
“
Change
of Control
”
means
the occurrence of any of the following:
(1)
the
sale,
lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries, taken as
a
whole, to any Person other than a Permitted Holder; or
(2)
the
Issuer becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or
otherwise) of the acquisition by any Person or group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule 13d-5(b)(1)
under the Exchange Act or any successor provision), other than the Permitted
Holders, in a single transaction or in a series of related transactions, by
way
of merger, consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision) of 50% or more of the total voting power of the Voting
Stock of the Issuer or any of its direct or indirect parent companies holding
directly or indirectly 100% of the total voting power of the Voting Stock of
the
Issuer.
“
Clearstream
”
means
Clearstream Banking, Société Anonyme.
“
Code
”
means
the Internal Revenue Code of 1986, as amended, or any successor
thereto.
“
Consolidated
Depreciation and Amortization Expense
”
means
with respect to any Person for any period, the total amount of depreciation
and
amortization expense, including the amortization of deferred financing fees,
debt issuance costs, commissions, fees and expenses and Capitalized Software
Expenditures, of such Person and its Restricted Subsidiaries for such period
on
a consolidated basis and otherwise determined in accordance with
GAAP.
“
Consolidated
Interest Expense
”
means,
with respect to any Person for any period, without duplication, the sum
of:
(1)
consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue
discount resulting from the issuance of Indebtedness at less than par,
(b) all commissions, discounts and other fees and charges owed with respect
to letters of credit or bankers’ acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of Hedging Obligations or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to
interest rate Hedging Obligations with respect to Indebtedness, and excluding
(u) accretion or accrual of discounted liabilities not constituting
Indebtedness, (v) any expense resulting from the discounting of any
Indebtedness in connection with the application of recapitalization accounting
or, if applicable, purchase accounting, (w) any Special Interest and any
comparable “additional interest” with respect to other securities,
(x) amortization of deferred financing fees, debt issuance costs,
commissions, fees and expenses, (y) any expensing of bridge, commitment and
other financing fees and (z) commissions, discounts, yield and other fees
and charges (including any interest expense) related to any Receivables
Facility); plus
(2)
consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less
(3)
interest
income for such period.
For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be
deemed to accrue at an interest rate reasonably determined by such Person to
be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
“
Consolidated
Leverage Ratio
”
as
of any
date of determination, means the ratio of (1) Consolidated Total Indebtedness
of
the Issuer and its Restricted Subsidiaries as of the end of the most recent
fiscal period for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being
made
shall occur to (2) the Issuer's EBITDA for the most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such event for which such calculation
is
being made shall occur, in each case with such pro forma adjustments to
Consolidated Total Indebtedness and EBITDA as are appropriate and consistent
with the pro forma adjustment provisions set forth in the definition of "Fixed
Charge Coverage Ratio."
“
Consolidated
Net Income
”
means,
with respect to any Person for any period, the aggregate of the Net Income
of
such Person for such period, on a consolidated basis, and otherwise determined
in accordance with GAAP;
provided
,
however
,
that,
without duplication,
(1)
any
after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating
to
the Transactions to the extent incurred on or prior to May 1, 2008), severance,
relocation costs, consolidation and closing costs, integration and facilities
opening costs, business optimization costs, transition costs, restructuring
costs, signing, retention or completion bonuses, and curtailments or
modifications to pension and post-retirement employee benefit plans shall be
excluded,
(2)
the
cumulative effect of a change in accounting principles during such period shall
be excluded,
(3)
any
after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed or discontinued operations shall be
excluded,
(4)
any
after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than in the
ordinary course of business, as determined in good faith by the Issuer, shall
be
excluded,
(5)
the
Net
Income for such period of any Person that is an Unrestricted Subsidiary shall
be
excluded, and, solely for the purpose of determining the amount available for
Restricted Payments under clause 3(a) of Section 4.07(a) hereof, the Net Income
for such period of any Person that is not a Subsidiary or that is accounted
for
by the equity method of accounting shall be excluded;
provided
that
Consolidated Net Income of the Issuer shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash
(or
to the extent converted into cash) to the Issuer or a Restricted Subsidiary
thereof in respect of such period, to the extent not already included
therein,
(6)
solely
for the purpose of determining the amount available for Restricted Payments
under clause (3)(a) of Section 4.07(a) hereof, the Net Income for such
period of any Restricted Subsidiary (other than any Guarantor) shall be excluded
to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of its Net Income is not at the
date
of determination wholly permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of the
terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule, or governmental regulation applicable to that Restricted Subsidiary or
its
stockholders, unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived;
provided
that
Consolidated Net Income of the Issuer will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or
to
the extent converted into cash) or Cash Equivalents to the Issuer or a
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,
(7)
effects
of adjustments (including the effects of such adjustments pushed down to the
Issuer and its Restricted Subsidiaries) in the property, equipment, inventory,
software and other intangible assets, deferred revenue and debt line items
in
such Person’s consolidated financial statements pursuant to GAAP resulting from
the application of recapitalization accounting or, if applicable, purchase
accounting in relation to the Transactions or any consummated acquisition or
the
amortization or write-off of any amounts thereof, net of taxes, shall be
excluded,
(8)
any
after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments shall be
excluded,
(9)
any
impairment charge or asset write-off, including, without limitation, impairment
charges or asset write-offs related to intangible assets, long-lived assets
or
investments in debt and equity securities, in each case, pursuant to GAAP and
the amortization of intangibles arising pursuant to GAAP shall be
excluded,
(10)
any
non-cash compensation expense recorded from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights, and any cash
charges associated with the rollover, acceleration or payout of Equity Interests
by management of the Issuer or any of its direct or indirect parent companies
in
connection with the Transactions, shall be excluded,
(11)
any
fees
and expenses incurred during such period, or any amortization thereof for such
period, in connection with any acquisition, Investment, Asset Sale, issuance
or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction
or amendment or modification of any debt instrument (in each case, including
any
such transaction consummated prior to the Issue Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction shall be
excluded,
(12)
accruals
and reserves that are established or adjusted within twelve months after the
Issue Date that are so required to be established as a result of the
Transactions in accordance with GAAP, or changes as a result of adoption or
modification of accounting policies, shall be excluded, and
(13)
to
the
extent covered by insurance and actually reimbursed, or, so long as the Issuer
has made a determination that there exists reasonable evidence that such amount
will in
fact
be
reimbursed by the insurer and only to the extent that such amount is
(a) not denied by the applicable carrier in writing within 180 days and
(b) in fact reimbursed within 365 days of the date of such evidence (with a
deduction for any amount so added back to the extent not so reimbursed within
365 days), expenses with respect to liability or casualty events or business
interruption shall be excluded.
Notwithstanding
the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(3)(d) of Section 4.07(a) hereof), there shall be excluded from
Consolidated Net Income any income arising from any sale or other disposition
of
Restricted Investments made by the Issuer and its Restricted Subsidiaries,
any
repurchases and redemptions of Restricted Investments from the Issuer and its
Restricted Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Issuer or any of its Restricted Subsidiaries,
any
sale of the stock of an Unrestricted Subsidiary or any distribution or dividend
from an Unrestricted Subsidiary, in each case only to the extent such amounts
increase the amount of Restricted Payments permitted under clause (3)(d) of
Section 4.07(a) hereof.
“
Consolidated
Secured Debt Ratio
”
as
of
any date of determination, means the ratio of (1) Consolidated Total
Indebtedness of the Issuer and its Restricted Subsidiaries that is secured
by
Liens as of the end of the most recent fiscal period for which internal
financial statements are available immediately preceding the date on which
such
event for which such calculation is being made shall occur to (2) the
Issuer’s EBITDA for the most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date
on
which such event for which such calculation is being made shall occur, in each
case with such
pro
forma
adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate
and
consistent with the
pro
forma
adjustment provisions set forth in the definition of “Fixed Charge Coverage
Ratio.”
“
Consolidated
Total Indebtedness
”
means,
as of any date of determination, an amount equal to the sum of (1) the
aggregate amount of all outstanding Indebtedness of the Issuer and its
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness
for
borrowed money, Obligations in respect of Capitalized Lease Obligations and
debt
obligations evidenced by promissory notes and similar instruments (and
excluding, for the avoidance of doubt, all obligations relating to Receivables
Facilities) and (2) the aggregate amount of all outstanding Disqualified
Stock of the Issuer and all Preferred Stock of its Restricted Subsidiaries
on a
consolidated basis, with the amount of such Disqualified Stock and Preferred
Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case
determined on a consolidated basis in accordance with GAAP. For purposes hereof,
the “
maximum
fixed repurchase price
”
of
any
Disqualified Stock or Preferred Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were
purchased on any date on which Consolidated Total Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon,
or
measured by, the fair market value of such Disqualified Stock or Preferred
Stock, such fair market value shall be determined reasonably and in good faith
by the Issuer.
“
Contingent
Obligations
”
means,
with respect to any Person, any obligation of such Person guaranteeing any
leases, dividends or other obligations that do not constitute Indebtedness
(“
primary
obligations
”)
of any
other Person (the “
primary
obligor
”)
in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent,
(1)
to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,
(2)
to
advance or supply funds:
(a)
for
the
purchase or payment of any such primary obligation, or
(b)
to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, or
(3)
to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect
thereof.
“
Corporate
Trust Office of the Trustee
”
shall
be at the address of the Trustee specified in Section 12.02 hereof or such
other
address as to which the Trustee may give notice to the Holders and the
Issuer.
“
Credit
Facilities
”
means,
with respect to the Issuer or any of its Restricted Subsidiaries, one or more
debt facilities, including the Senior Credit Facilities, or other financing
arrangements (including, without limitation, commercial paper facilities or
indentures) providing for revolving credit loans, term loans, letters of credit
or other long-term indebtedness, including any notes, mortgages, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals,
restatements or refundings thereof and any indentures, notes, debentures or
credit facilities or commercial paper facilities that replace, refund or
refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility
or
indenture that increases the amount permitted to be borrowed thereunder or
alters the maturity thereof (
provided
that
such increase in borrowings is permitted under Section 4.09 hereof) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.
“
Custodian
”
means
the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“
Default
”
means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
“
Definitive
Note
”
means
a
certificated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06(c) hereof, substantially in the form of
Exhibit A
except
that such Note shall not bear the Global Note Legend and shall not have the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto.
“
Depositary
”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03 hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as Depositary hereunder
and having become such pursuant to the applicable provision of this
Indenture.
“
Designated
Non-cash Consideration
”
means
the fair market value of non-cash consideration received by the Issuer or a
Restricted Subsidiary in connection with an Asset Sale that is so designated
as
Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting
forth the basis of such valuation, executed by the principal financial officer
of the Issuer, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of or collection on such Designated Non-cash
Consideration.
“
Designated
Preferred Stock
”
means
Preferred Stock of the Issuer or any parent corporation thereof (in each case
other than Disqualified Stock) that is issued for cash (other than to a
Restricted Subsidiary or an employee stock ownership plan or trust established
by the Issuer or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officer’s Certificate executed by the principal
financial officer of the Issuer or the applicable parent corporation thereof,
as
the case may be, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (3) of Section 4.07(a)
hereof.
“
Disqualified
Stock
”
means,
with respect to any Person, any Capital Stock of such Person which, by its
terms, or by the terms of any security into which it is convertible or for
which
it is putable or exchangeable, or upon the happening of any event, matures
or is
mandatorily redeemable (other than solely as a result of a change of control
or
asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than solely as a result of a change
of control or asset sale), in whole or in part, in each case prior to the date
91 days after the earlier of the maturity date of the Notes or the date the
Notes are no longer outstanding;
provided
,
however
,
that if
such Capital Stock is issued to any plan for the benefit of employees of the
Issuer or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Issuer or its Subsidiaries in order to satisfy
applicable statutory or regulatory obligations.
“
EBITDA
”
means,
with respect to any Person for any period, the Consolidated Net Income of such
Person for such period
(1)
increased
(without duplication) by:
(a)
provision
for taxes based on income or profits or capital gains, including, without
limitation, foreign, federal, state, franchise and similar taxes and foreign
withholding taxes (including penalties and interest related to such taxes or
arising from tax examinations) of such Person paid or accrued during such period
deducted (and not added back) in computing Consolidated Net Income in such
period;
plus
(b)
Fixed
Charges of such Person for such period (including (x) net losses on Hedging
Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk and (y) costs of surety bonds in connection with
financing activities, in each case, to the extent included in Fixed Charges),
together with items excluded from the definition of “Consolidated Interest
Expense” pursuant to clauses (1)(u), (v), (w), (x), (y) and (z) of the
definition thereof, and, in each such case, to the extent the same were deducted
(and not added back) in calculating such Consolidated Net Income in such period;
plus
(c)
Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent the same was deducted (and not added back) in computing Consolidated
Net
Income in such period;
plus
(d)
any
expenses or charges (other than depreciation or amortization expense) related
to
any Equity Offering, Permitted Investment, acquisition, disposition,
recapitalization or the incurrence of Indebtedness permitted to be incurred
by
this Indenture (including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to the offering of the
Notes and any Credit Facilities and
(ii) any
amendment or other modification of the Notes, and, in each case, deducted
(and
not added back) in computing Consolidated Net Income in such period;
plus
(e)
the
amount of any restructuring charge or reserve deducted (and not added back)
in
such period in computing Consolidated Net Income, including any one-time costs
incurred in connection with acquisitions after the Issue Date and costs related
to the closure and/or consolidation of facilities;
plus
(f)
any
other
non-cash charges, including any write-offs or write-downs, reducing Consolidated
Net Income for such period (
provided
that if
any such non-cash charges represent an accrual or reserve for potential cash
items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period);
plus
(g)
the
amount of any minority interest expense consisting of income attributable to
minority equity interests of third parties deducted (and not added back) in
such
period in calculating Consolidated Net Income in such period;
plus
(h)
the
amount of management, monitoring, consulting and advisory fees and related
expenses paid in such period to the Investors to the extent otherwise permitted
under Section 4.11 hereof;
plus
(i)
the
amount of net cost savings projected by the Issuer in good faith to be realized
as a result of specified actions taken or to be taken (calculated on a
pro
forma
basis as
though such cost savings had been realized on the first day of such period),
net
of the amount of actual benefits realized during such period from such actions;
provided
that
(w) such cost savings are reasonably identifiable and factually
supportable, (x) such actions have been taken or are to be taken within 12
months after the date of determination to take such action, (y) no cost savings
shall be added pursuant to this clause (i) to the extent duplicative of any
expenses or charges relating to such cost savings that are included in clause
(e) above with respect to such period and (z) the aggregate amount of cost
savings added pursuant to this clause (i) shall not exceed $25.0 million for
any
four consecutive quarter period (which adjustments may be incremental to
pro
forma
adjustments made pursuant to the second paragraph of the definition of “Fixed
Charge Coverage Ratio”);
plus
(j)
the
amount of loss on sales of receivables and related assets to the Receivables
Subsidiary in connection with a Receivables Facility;
plus
(k)
an
amount
equal to the impact on cost of goods sold and operating profit of incremental
markdowns taken as a result of Project Alpha as described in footnote (5)(a)
of
“Offering Circular Summary—Summary Historical and Pro Forma Consolidated
Financial and Other Data” in the Offering Circular;
provided
that
this clause (k) shall not apply to any quarterly period beginning after February
1, 2008;
plus
(l)
any
expenses associated with Project Alpha inventory and real estate initiatives
as
described in footnote (5)(b) of “Offering Circular Summary—Summary Historical
and Pro Forma Consolidated Financial and Other Data” in the Offering
Circular;
provided
that
this clause (l) shall not apply to any quarterly period beginning after February
1, 2008;
plus
(m)
any
costs
or expense incurred by the Issuer or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement or any stock subscription or shareholder agreement,
to
the extent that such cost or expenses are funded with cash proceeds contributed
to the capital of the Issuer or net cash proceeds of an issuance of Equity
Interests of the Issuer (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in
clause (3) of Section 4.07(a) hereof;
(2)
decreased
by (without duplication) non-cash gains increasing Consolidated Net Income
of
such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period; and
(3)
increased
or decreased by (without duplication):
(a)
any
net
gain or loss resulting in such period from Hedging Obligations and the
application of Statement of Financial Accounting Standards No. 133;
plus
or
minus
,
as
applicable, and
(b)
any
net
gain or loss resulting in such period from currency translation gains or losses
related to currency remeasurements of Indebtedness (including any net loss
or
gain resulting from Hedging Obligations for currency exchange
risk).
“
EMU
”
means
the economic and monetary union as contemplated in the Treaty on European
Union.
“
Equity
Interests
”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock, but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock.
“
Equity
Offering
”
means
any public or private sale of common stock or Preferred Stock of the Issuer
or
any of its direct or indirect parent companies (excluding Disqualified Stock),
other than:
(1)
public
offerings with respect to the Issuer’s or any direct or indirect parent
company’s common stock registered on Form S-8;
(2)
issuances
to any Subsidiary of the Issuer; and
(3)
any
such
public or private sale that constitutes an Excluded Contribution.
“
euro
”
means
the single currency of participating member states of the EMU.
“
Euroclear
”
means
Euroclear S.A./N.V., as operator of the Euroclear system.
“
Exchange
Act
”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“
Exchange
Notes
”
means
any notes issued in exchange for the Notes pursuant to Section 2.06(f)
hereof.
“
Exchange
Offer
”
has
the
meaning set forth in any Registration Rights Agreement.
“
Exchange
Offer Registration Statement
”
has
the
meaning set forth in the Registration Rights Agreement.
“
Excluded
Contribution
”
means
net cash proceeds, marketable securities or Qualified Proceeds received by
the
Issuer after the Issue Date from:
(1)
contributions
to its common equity capital, and
(2)
the
sale
(other than to a Subsidiary of the Issuer or to any management equity plan
or
stock option plan or any other management or employee benefit plan or agreement
of the Issuer) of Capital Stock (other than Disqualified Stock and Designated
Preferred Stock) of the Issuer,
in
each
case designated as Excluded Contributions pursuant to an Officer’s Certificate
executed by the principal financial officer of the Issuer on the date such
capital contributions are made or the date such Equity Interests are sold,
as
the case may be, which are excluded from the calculation set forth in clause
(3) of Section 4.07(a) hereof.
“
Fixed
Charge Coverage Ratio
”
means,
with respect to any Person for any period, the ratio of EBITDA of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees,
redeems, retires or extinguishes any Indebtedness (other than Indebtedness
incurred under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) or issues or redeems Disqualified
Stock or Preferred Stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “
Fixed
Charge Coverage Ratio Calculation Date
”),
then
the Fixed Charge Coverage Ratio shall be calculated giving
pro
forma
effect
to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption of Disqualified
Stock or Preferred Stock, as if the same had occurred on the first day of the
applicable four-quarter period.
For
purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined
in
accordance with GAAP) that have been made by the Issuer or any of its Restricted
Subsidiaries during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Fixed Charge
Coverage Ratio Calculation Date shall be calculated on a
pro
forma
basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred
on
the first day of the four-quarter reference period. If, since the beginning
of
such period, any Person that subsequently became a Restricted Subsidiary or
was
merged with or into the Issuer or any of its Restricted Subsidiaries since
the
beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or disposed operation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving
pro
forma
effect
thereto for such period as if such Investment, acquisition, disposition, merger,
consolidation or disposed operation had occurred on the first day of the
applicable four-quarter period.
For
purposes of this definition, whenever
pro
forma
effect
is to be given to a transaction, the
pro
forma
calculations shall be made in good faith by a responsible financial or
accounting officer of the Issuer. If any Indebtedness bears a floating rate
of
interest and is being given
pro
forma
effect,
the interest on such Indebtedness shall be calculated as if the rate in effect
on the Fixed Charge Coverage Ratio Calculation Date had been the applicable
rate
for the entire period (taking into account any Hedging Obligations applicable
to
such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Issuer to be the rate of interest implicit in
such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making
the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a
pro
forma
basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period except as set forth in the first paragraph of
this
definition. Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate or other rate shall be deemed to have been based upon
the
rate actually chosen, or, if none, then based upon such optional rate chosen
as
the Issuer may designate.
“
Fixed
Charges
”
means,
with respect to any Person for any period, the sum of:
(1)
Consolidated
Interest Expense of such Person for such period;
(2)
all
cash
dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period;
and
(3)
all
cash
dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such
period.
“
Foreign
Subsidiary
”
means,
with respect to any Person, any Restricted Subsidiary of such Person that is
not
organized or existing under the laws of the United States, any state thereof
or
the District of Columbia and any Restricted Subsidiary of such Foreign
Subsidiary.
“
GAAP
”
means
generally accepted accounting principles in the United States which are in
effect on the Issue Date.
“
General
Credit Facility
”
means
the credit agreement to be entered into as of the Issue Date by and among the
Issuer, the lenders party thereto in their capacities as lenders thereunder
and
Citicorp North America, Inc., as Administrative Agent, including any guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals,
restatements, refundings or refinancings thereof and any indentures, notes,
debentures or credit facilities or commercial paper facilities with banks or
other institutional lenders or investors that replace, refund or refinance
any
part of the loans, notes, other credit facilities or commitments thereunder,
including any such replacement, refunding or refinancing facility or indenture
that increases the amount borrowable thereunder or alters the maturity thereof
(
provided
that
such increase in borrowings is permitted under Section 4.10
hereof).
“
Global
Note Legend
”
means
the legend set forth in Section 2.06(g)(ii) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
“
Global
Notes
”
means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes, substantially in the form of
Exhibit
A
issued
in accordance with Section 2.01, 2.06(b), 2.06(d) or 2.06(f)
hereof.
“
Government
Securities
”
means
securities that are:
(1)
direct
obligations of the United States of America for the timely payment of which
its
full faith and credit is pledged; or
(2)
obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which
is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America,
which,
in
either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to
any such Government Securities or a specific payment of principal of or interest
on any such Government Securities held by such custodian for the account of
the
holder of such depository receipt;
provided
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from
any amount received by the custodian in respect of the Government Securities
or
the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.
“
guarantee
”
means
a
guarantee (other than by endorsement of negotiable instruments for collection
in
the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all
or
any part of any Indebtedness or other obligations.
“
Guarantee
”
means
the guarantee by any Guarantor of the Issuer’s Obligations under this
Indenture.
“
Guarantor
”
means,
each Restricted Subsidiary that Guarantees the Notes in accordance with the
terms of this Indenture.
“
Hedging
Obligations
”
means,
with respect to any Person, the obligations of such Person under any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar
agreement, foreign exchange contract, currency swap agreement or similar
agreement providing for the transfer or mitigation of interest rate or currency
risks either generally or under specific contingencies.
“
Holder
”
means
the Person in whose name a Note is registered on the Registrar’s
books.
“
Indebtedness
”
means,
with respect to any Person, without duplication:
(1)
any
indebtedness (including principal and premium) of such Person, whether or not
contingent:
(a)
in
respect of borrowed money;
(b)
evidenced
by bonds, notes, debentures or similar instruments or letters of credit or
bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);
(c)
representing
the balance deferred and unpaid of the purchase price of any property (including
Capitalized Lease Obligations), except (i) any such balance that
constitutes
a trade payable or similar obligation to a trade creditor, in each case accrued
in the ordinary course of business and (ii) any earn-out obligations until
such
obligation becomes a liability on the balance sheet of such Person in accordance
with GAAP; or
(d)
representing
any Hedging Obligations;
if
and to
the extent that any of the foregoing Indebtedness (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP;
(2)
to
the
extent not otherwise included, any obligation by such Person to be liable for,
or to pay, as obligor, guarantor or otherwise on, the obligations of the type
referred to in clause (1) of a third Person (whether or not such items would
appear upon the balance sheet of the such obligor or guarantor), other than
by
endorsement of negotiable instruments for collection in the ordinary course
of
business; and
(3)
to
the
extent not otherwise included, the obligations of the type referred to in clause
(1) of a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;
provided
,
however
,
that
notwithstanding the foregoing, Indebtedness shall be deemed not to include
(a) Contingent Obligations incurred in the ordinary course of business or
(b) obligations under or in respect of Receivables Facilities.
“
Indenture
”
means
this Indenture, as amended or supplemented from time to time.
“
Independent
Financial Advisor
”
means
an accounting, appraisal, investment banking firm or consultant to Persons
engaged in Similar Businesses of nationally recognized standing that is, in
the
good faith judgment of the Issuer, qualified to perform the task for which
it
has been engaged.
“
Indirect
Participant
”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“
Initial
Notes
”
has
the
meaning set forth in the recitals hereto.
“
Initial
Purchasers
”
means
Goldman, Sachs & Co., Citigroup Global Markets Inc., Lehman Brothers and
Wachovia Capital Markets, LLC.
“
Insolvency
or Liquidation Proceeding
”
means:
(1)
any
case
commenced by or against the Issuer or any Guarantor under any Bankruptcy Law
for
the relief of debtors, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities
of
the Issuer or any Guarantor, any receivership or assignment for the benefit
of
creditors relating to the Issuer or any Guarantor or any similar case or
proceeding relative to the Issuer or any Guarantor or its creditors, as such,
in
each case whether or not voluntary;
(2)
any
liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Issuer or any Guarantor, in each case whether or not
voluntary and whether or not involving bankruptcy or insolvency; or
(3)
any
other
proceeding of any type or nature in which substantially all claims of creditors
of the Issuer or any Guarantor are determined and any payment or distribution
is
or may be made on account of such claims.
“
Interest
Payment Date
”
means
January 15 and July 15 of each year to stated maturity.
“
Investment
Grade Rating
”
means
a
rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P, or an equivalent rating by any other Rating
Agency.
“
Investment
Grade Securities
”
means:
(1)
securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash
Equivalents);
(2)
debt
securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the
Issuer and its Subsidiaries;
(3)
investments
in any fund that invests exclusively in investments of the type described in
clauses (1) and (2) which fund may also hold immaterial amounts of cash pending
investment or distribution; and
(4)
corresponding
instruments in countries other than the United States customarily utilized
for
high quality investments.
“
Investments
”
means,
with respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the form of loans (including guarantees), advances
or
capital contributions (excluding accounts receivable, trade credit, advances
to
customers, commissions, travel and similar advances to officers and employees,
in each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by
GAAP
to be classified on the balance sheet (excluding the footnotes) of the Issuer
in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. For
purposes of the definition of “Unrestricted Subsidiary” and Section 4.07
hereof:
(1)
“Investments”
shall include the portion (proportionate to the Issuer’s equity interest in such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the
Issuer at the time that such Subsidiary is designated an Unrestricted
Subsidiary;
provided
,
however
,
that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer
shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in an amount (if positive) equal to:
(a)
the
Issuer’s “Investment” in such Subsidiary at the time of such redesignation;
less
(b)
the
portion (proportionate to the Issuer’s equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and
(2)
any
property transferred to or from an Unrestricted Subsidiary shall be valued
at
its fair market value at the time of such transfer, in each case fair market
value as determined in good faith by the Issuer.
“
Investors
”
means
Kohlberg Kravis Roberts & Co. L.P., GS Capital Partners VI Fund, L.P.
and funds managed by Citigroup Private Equity LP, and each of their respective
Affiliates but not including, however, any portfolio companies of any of the
foregoing.
“
Issue
Date
”
means
July 6, 2007.
“
Issuer
”
has
the
meaning set forth in the recitals hereto;
provided
that
when used in the context of determining the fair market value of an asset or
liability under this Indenture, other than in calculating the ABL Facility
Cap,
“Issuer” shall be deemed to mean the board of directors of the Issuer when the
fair market value is equal to or in excess of $50.0 million (unless otherwise
expressly stated).
“
Issuer
Order
”
means
a
written request or order signed on behalf of the Issuer by an Officer of the
Issuer, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Issuer, and
delivered to the Trustee.
“
Legal
Holiday
”
means
a
Saturday, a Sunday or a day on which commercial banking institutions are not
required to be open in the State of New York or the city in which the Corporate
Trust Office of the Trustee is located.
“
Letter
of Transmittal
”
means
the letter of transmittal to be prepared by the Issuer and sent to all Holders
of the Notes for use by such Holders in connection with the Exchange
Offer.
“
Lien
”
means,
with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority or encumbrance
of
any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction;
provided
that in
no event shall an operating lease be deemed to constitute a Lien.
“
Moody’s
”
means
Moody’s Investors Service, Inc. and any successor to its rating agency
business.
“
Net
Income
”
means,
with respect to any Person, the net income (loss) of such Person, determined
in
accordance with GAAP and before any reduction in respect of Preferred Stock
dividends.
“
Net
Proceeds
”
means
the aggregate cash proceeds received by the Issuer or any of its Restricted
Subsidiaries in respect of any Asset Sale, including any cash received upon
the
sale or other disposition of any Designated Non-cash Consideration received
in
any Asset Sale, net of the direct costs relating to such Asset Sale and the
sale
or disposition of such Designated Non-cash Consideration, including legal,
accounting and investment banking fees, and brokerage and sales commissions,
any
relocation expenses incurred as a result thereof, taxes paid or payable as
a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied
to
the repayment of principal, premium, if any, and interest on Senior Indebtedness
required (other than required by clause (1) of Section 4.10(b) hereof) to
be paid as a result of such transaction and any deduction of appropriate amounts
to be provided by the Issuer or any of its Restricted Subsidiaries as
a
reserve
in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Issuer or any of its
Restricted Subsidiaries after such sale or other disposition thereof, including
pension and other post-employment benefit liabilities and liabilities related
to
environmental matters or against any indemnification obligations associated
with
such transaction.
“
Non
U.S. Person
”
means
a
Person who is not a U.S. Person.
“
Notes
”
means
the Initial Notes and more particularly means any Note authenticated and
delivered under this Indenture. For all purposes of this Indenture, the term
“Notes” shall also include any Additional Notes that may be issued under a
supplemental indenture. For purposes of this Indenture, all references to Notes
to be issued or authenticated upon transfer, replacement or exchange shall
be
deemed to refer to Notes of the applicable series.
“
Obligations
”
means
any principal, interest (including any interest accruing subsequent to the
filing of a petition in bankruptcy, reorganization or similar proceeding at
the
rate provided for in the documentation with respect thereto, whether or not
such
interest is an allowed claim under applicable state, federal or foreign law),
premium, penalties, fees, indemnifications, reimbursements (including
reimbursement obligations with respect to letters of credit and bankers’
acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any
Indebtedness.
“
Offering
Circular
”
means
the offering circular, dated June 28, 2007, relating to the sale of the Initial
Notes.
“
Officer
”
means
the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Issuer.
“
Officer’s
Certificate
”
means
a
certificate signed on behalf of the Issuer by an Officer of the Issuer, who
must
be the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Issuer.
“
Opinion
of Counsel
”
means
a
written opinion from legal counsel who is acceptable to the Trustee. The counsel
may be an employee of or counsel to the Issuer or the Trustee.
“
Participant
”
means,
with respect to the Depositary, Euroclear or Clearstream, a Person who has
an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
“
Permitted
Asset Swap
”
means
the concurrent purchase and sale or exchange of Related Business Assets or
a
combination of Related Business Assets and cash or Cash Equivalents between
the
Issuer or any of its Restricted Subsidiaries and another Person;
provided
that any
cash or Cash Equivalents received must be applied in accordance with Section
4.10 hereof.
“
Permitted
Holders
”
means
each of the Investors, members of management of the Issuer (or its direct or
indirect parent) and any assignees of the equity commitments of the Investors
on
the Issue Date who are, or will be, pursuant to the agreements described under
the captions “Management—Equity Investment by Senior Management Participants”
and “—Equity Investment by Other Management
Participants”
in the Offering Circular, that are holders of Equity Interests of the Issuer
(or
any of its direct or indirect parent companies) and any group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or
any successor provision) of which any of the foregoing are members;
provided
that, in
the case of such group and without giving effect to the existence of such
group
or any other group, such Investors, members of management and assignees of
the
equity commitments of the Investors, collectively, have beneficial ownership
of
more than 50% of the total voting power of the Voting Stock of the Issuer
or any
of its direct or indirect parent companies.
“
Permitted
Investments
”
means:
(1)
any
Investment in the Issuer or any of its Restricted Subsidiaries;
(2)
any
Investment in cash and Cash Equivalents or Investment Grade
Securities;
(3)
any
Investment by the Issuer or any of its Restricted Subsidiaries in a Person
that
is engaged in a Similar Business if as a result of such Investment:
(a)
such
Person becomes a Restricted Subsidiary; or
(b)
such
Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Issuer or a Restricted
Subsidiary,
and,
in
each case, any Investment held by such Person;
provided
that
such Investment was not acquired by such Person in contemplation of such
acquisition, merger, consolidation or transfer;
(4)
any
Investment in securities or other assets not constituting cash, Cash Equivalents
or Investment Grade Securities and received in connection with an Asset Sale
made pursuant to the provisions described under Section 4.10 hereof or any
other
disposition of assets not constituting an Asset Sale;
(5)
any
Investment existing on the Issue Date;
(6)
any
Investment acquired by the Issuer or any of its Restricted
Subsidiaries:
(a)
in
exchange for any other Investment or accounts receivable held by the Issuer
or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable; or
(b)
as
a
result of a foreclosure by the Issuer or any of its Restricted Subsidiaries
with
respect to any secured Investment or other transfer of title with respect to
any
secured Investment in default;
(7)
Hedging
Obligations permitted under clause (11) of Section 4.09(b)
hereof;
(8)
any
Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that
are at that time outstanding, not to exceed $50 million at the time of such
Investment (with the fair market value
of
each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
(9)
Investments
the payment for which consists of Equity Interests (exclusive of Disqualified
Stock) of the Issuer or any of its direct or indirect parent companies;
provided
,
however
,
that
such Equity Interests will not increase the amount available for Restricted
Payments under clause (3) of Section 4.07(a) hereof;
(10)
guarantees
of Indebtedness permitted under Section 4.09 hereof;
(11)
any
transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 4.11(b) hereof (except
transactions described in clauses (2), (5) and (9) of Section 4.11(b)
hereof);
(12)
Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;
(13)
additional
Investments having an aggregate fair market value, taken together with all
other
Investments made pursuant to this clause (13) that are at that time
outstanding (without giving effect to the sale of an Unrestricted Subsidiary
to
the extent the proceeds of such sale do not consist of cash or marketable
securities), not to exceed $100 million at the time of such Investment (with
the
fair market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value);
(14)
Investments
relating to a Receivables Subsidiary that, in the good faith determination
of
the Issuer, are necessary or advisable to effect the ABL Facility or any
Receivables Facility, as the case may be;
(15)
advances
to, or guarantees of Indebtedness of, employees not in excess of
$10.0 million outstanding at any one time, in the aggregate;
(16)
loans
and
advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred
in
the ordinary course of business or consistent with past practices or to fund
such Person’s purchase of Equity Interests of the Issuer or any direct or
indirect parent company thereof; and
(17)
Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment or the licensing or contribution of intellectual property pursuant
to
joint marketing arrangements with other Persons.
“
Permitted
Liens
”
means,
with respect to any Person:
(1)
pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits
as
security for contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business;
(2)
Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each
case for sums not yet overdue for a period of more than 30 days or being
contested in good faith by appropriate proceedings or other Liens arising out
of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review if adequate
reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(3)
Liens
for
taxes, assessments or other governmental charges not yet overdue for a period
of
more than 30 days or payable or subject to penalties for nonpayment or which
are
being contested in good faith by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of such
Person in accordance with GAAP;
(4)
Liens
in
favor of issuers of performance and surety bonds or bid bonds or with respect
to
other regulatory requirements or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business;
(5)
minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as
to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred
in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use
in
the operation of the business of such Person;
(6)
Liens
securing Indebtedness permitted to be incurred pursuant to clauses (1), (5),
(13), (14) , (19) or (20) of Section 4.09(b) hereof;
provided
that
(a) Liens securing Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (14) relate only to Refinancing
Indebtedness that serves to refund or refinance Indebtedness, Disqualified
Stock
or Preferred Stock incurred under clause (5) or (13) of Section
4.09(b) hereof, (b) Liens securing Indebtedness permitted to be incurred
pursuant to clause (19) extend only to the assets of Foreign Subsidiaries,
(c) Liens securing Indebtedness permitted to be incurred pursuant to clause
(20) are solely on acquired property or the assets of the acquired entity,
as the case may be and (d) Liens securing Indebtedness, Disqualified Stock
or Preferred Stock permitted to be incurred pursuant to clause (5) of
Section 4.09(b) hereof extend only to the assets so financed, purchased,
constructed or improved;
(7)
Liens
existing on the Issue Date (other than Liens in favor of the lenders under
the
Senior Credit Facilities);
(8)
Liens
on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary;
provided
,
however
,
such
Liens are not created or incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary;
provided
,
further
,
however
,
that
such Liens may not extend to any other property owned by the Issuer or any
of
its Restricted Subsidiaries;
(9)
Liens
on
property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with
or into the Issuer or any of its Restricted Subsidiaries;
provided
,
however
,
that
such Liens are not created or incurred in connection with, or in contemplation
of, such acquisition;
provided
,
further
,
however
,
that
the Liens may not extend to any
other property owned by the Issuer or any of its Restricted
Subsidiaries;
(10)
Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing
to
the Issuer or another Restricted Subsidiary permitted to be incurred in
accordance with Section 4.09 hereof;
(11)
Liens
securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Indenture, secured by a Lien on the same property
securing such Hedging Obligations;
(12)
Liens
on
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
(13)
leases,
subleases, licenses or sublicenses granted to others in the ordinary course
of
business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure
any Indebtedness;
(14)
Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Issuer and its Restricted Subsidiaries
in
the ordinary course of business;
(15)
Liens
in
favor of the Issuer or any Guarantor;
(16)
Liens
on
equipment of the Issuer or any of its Restricted Subsidiaries granted in the
ordinary course of business;
(17)
Liens
on
accounts receivable and related assets incurred in connection with a Receivables
Facility;
(18)
Liens
to
secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements),
as a
whole or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (6), (7), (8) and (9);
provided
,
however
,
that
(a) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property), and (b) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (6),
(7),
(8) and (9) at the time the original Lien became a Permitted Lien
under this Indenture, and (ii) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement;
(19)
deposits
made in the ordinary course of business to secure liability to insurance
carriers;
(20)
other
Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $20.0 million at any one time
outstanding;
(21)
Liens
securing judgments for the payment of money not constituting an Event of Default
under clause (5) under Section 6.01(a) hereof so long as such Liens are
adequately bonded and any appropriate legal proceedings that may have been
duly
initiated for the review of such judgment have not been finally terminated
or
the period within which such proceedings may be initiated has not
expired;
(22)
Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the
ordinary course of business;
(23)
Liens
(i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code, or any comparable or successor provision, on items in the
course of collection, (ii) attaching to commodity trading accounts or other
commodity brokerage accounts incurred in the ordinary course of business, and
(iii) in favor of banking institutions arising as a matter of law
encumbering deposits (including the right of set-off) and which are within
the
general parameters customary in the banking industry;
(24)
Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.09 hereof;
provided
that
such Liens do not extend to any assets other than those that are the subject
of
such repurchase agreements;
(25)
Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft
or similar obligations incurred in the ordinary course of business of the Issuer
and its Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Issuer or any of its
Restricted Subsidiaries in the ordinary course of business;
(26)
Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes; and
(27)
Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale or purchase of goods entered into by the Issuer or
any
Restricted Subsidiary in the ordinary course of business.
For
purposes of this definition, the term “Indebtedness” shall be deemed to include
interest on such Indebtedness.
“
Person
”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“
Plan
of Reorganization
”
means
any plan of reorganization, plan of liquidation, agreement for composition,
or
other type of plan of arrangement proposed in or in connection with any
Insolvency or Liquidation Proceeding.
“
Preferred
Stock
”
means
any Equity Interest with preferential rights of payment of dividends or upon
liquidation, dissolution or winding up.
“
Private
Placement Legend
”
means
the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes
issued under this Indenture, except where otherwise permitted by the provisions
of this Indenture.
“
Purchase
Money Obligations
”
means
any Indebtedness incurred to finance or refinance the acquisition, leasing,
construction or improvement of property (real or personal) or assets (other
than
Capital Stock), and whether acquired through the direct acquisition of such
property or assets, or otherwise.
“
QIB
”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“
Qualified
Proceeds
”
means
the fair value of assets that are used or useful in, or Capital Stock of any
Person engaged in, a Similar Business;
provided
that the
fair market value of any such assets or Capital Stock shall be determined by
the
Issuer in good faith.
“
Rating
Agencies
”
means
Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on
the Notes publicly available, a nationally recognized statistical rating agency
or agencies, as the case may be, selected by the Issuer which shall be
substituted for Moody’s or S&P or both, as the case may be.
“
Receivables
Collateral
”
means
all the assets pledged to the ABL Collateral Agent on behalf of the ABL Secured
Parties as security for the ABL Obligations.
“
Receivables
Facility
”
means
any of one or more receivables financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, the
Obligations of which are non-recourse (except for customary representations,
warranties, covenants and indemnities made in connection with such facilities)
to the Issuer or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Issuer or any of its Restricted Subsidiaries
purports to sell its accounts receivable to either (a) a Person that is not
a
Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such
purchase by purporting to sell its accounts receivable to a Person that is
not a
Restricted Subsidiary or by borrowing from such Person or from another
Receivables Subsidiary that in turn funds itself by borrowing from such
Person.
“
Receivables
Fees
”
means
distributions or payments made directly or by means of discounts with respect
to
any accounts receivable or participation interest therein issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with any Receivables Facility.
“
Receivables
Subsidiary
”
means
any Subsidiary formed for the purpose of facilitating or entering into one
or
more Receivables Facilities, and in each case engages only in activities
reasonably related or incidental thereto.
“
Record
Date
”
for
the
interest or Special Interest, if any, payable on any applicable Interest Payment
Date means January 1 or July 1 (whether or not a Business Day) next preceding
such Interest Payment Date.
“
Registration
Rights Agreement
”
means
the Registration Rights Agreement related to the Notes, dated as of the Issue
Date, among the Issuer,
Dollar
General
the
Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Issuer, the Dollar
General
and the other parties thereto, as such agreement(s) may be amended, modified
or
supplemented from time to time, relating to rights given by the Issuer or
Dollar
General to the purchasers of Additional Notes to register such Additional
Notes
under the Securities Act.
“
Regulation
S
”
means
Regulation S promulgated under the Securities Act.
“
Regulation
S Global Note
”
means
a
Global Note in the form of
Exhibit A
bearing
the Global Note Legend and the Private Placement Legend and deposited with
or on
behalf of, and registered in the name of, the Depositary or its nominee, that
will be issued in a denomination equal to the outstanding principal amount
of
the Notes sold in reliance on Regulation S.
“
Related
Business Assets
”
means
assets (other than cash or Cash Equivalents) used or useful in a Similar
Business;
provided
that any
assets received by the Issuer or a Restricted Subsidiary in exchange for assets
transferred by the Issuer or a Restricted Subsidiary will not be deemed to
be
Related Business Assets if they consist of securities of a Person, unless upon
receipt of the securities of such Person, such Person would become a Restricted
Subsidiary.
“
Responsible
Officer
”
means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
“
Restricted
Definitive Note
”
means
a
Definitive Note bearing the Private Placement Legend.
“
Restricted
Global Note
”
means
a
Global Note bearing the Private Placement Legend.
“
Restricted
Investment
”
means
an Investment other than a Permitted Investment.
“
Restricted
Period
”
means
the 40-day distribution compliance period as defined in Regulation
S.
“
Restricted
Subsidiary
”
means,
at any time, any direct or indirect Subsidiary of the Issuer (including any
Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided
,
however
,
that
upon an Unrestricted Subsidiary’s ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted
Subsidiary.”
“
Rule
144
”
means
Rule 144 promulgated under the Securities Act.
“
Rule
144A
”
means
Rule 144A promulgated under the Securities Act.
“
Rule
903
”
means
Rule 903 promulgated under the Securities Act.
“
Rule
904
”
means
Rule 904 promulgated under the Securities Act.
“
S&P
”
means
Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.
“
Sale
and Lease-Back Transaction
”
means
any arrangement providing for the leasing by the Issuer or any of its Restricted
Subsidiaries of any real or tangible personal property, which property has
been
or is to be sold or transferred by the Issuer or such Restricted Subsidiary
to a
third Person in contemplation of such leasing.
“
SEC
”
means
the U.S. Securities and Exchange Commission.
“
Secured
Indebtedness
”
means
any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured
by
a Lien.
“
Securities
Act
”
means
the Securities Act of 1933, as amended, and the rules and regulations of the
SEC
promulgated thereunder.
“
Senior
Credit Facilities
”
means
the ABL Facility and the General Credit Facility.
“
Senior
Indebtedness
”
means:
(1)
all
Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit
Facilities or Notes and related Guarantees (including interest accruing on
or
after the filing of any petition in bankruptcy or similar proceeding or for
reorganization of the Issuer or any Guarantor (at the rate provided for in
the
documentation with respect thereto, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings)), and any and all other
fees, expense reimbursement obligations, indemnification amounts, penalties,
and
other amounts (whether existing on the Issue Date or thereafter created or
incurred) and all obligations of the Issuer or any Guarantor to reimburse any
bank or other Person in respect of amounts paid under letters of credit,
acceptances or other similar instruments;
(2)
all
Hedging Obligations (and guarantees thereof) owing to a Lender (as defined
in
the Senior Credit Facilities) or any Affiliate of such Lender (or any Person
that was a Lender or an Affiliate of such Lender at the time the applicable
agreement giving rise to such Hedging Obligation was entered into);
provided
that
such Hedging Obligations are permitted to be incurred under the terms of this
Indenture;
(3)
any
other
Indebtedness of the Issuer or any Guarantor permitted to be incurred under
the
terms of this Indenture, unless the instrument under which such Indebtedness
is
incurred expressly provides that it is subordinated in right of payment to
the
Notes or any related Guarantee; and
(4)
all
Obligations with respect to the items listed in the preceding clauses (1),
(2)
and (3);
provided
,
however
,
that
Senior Indebtedness shall not include:
(a)
any
obligation of such Person to the Issuer or any of its Subsidiaries;
(b)
any
liability for federal, state, local or other taxes owed or owing by such
Person;
(c)
any
accounts payable or other liability to trade creditors arising in the ordinary
course of business;
(d)
any
Indebtedness or other Obligation of such Person which is subordinate or junior
in any respect to any other Indebtedness or other Obligation of such Person;
or
(e)
that
portion of any Indebtedness which at the time of incurrence is incurred in
violation of this Indenture.
“
Senior
Subordinated Indenture
”
means
the Senior Subordinated Indenture dated as of the Issue Date, among the Issuer,
Dollar General, the
Guarantors
,
as
guarantors and the Trustee, as trustee, pursuant to which the Senior
Subordinated Notes are issued.
“
Senior
Subordinated Notes
”
means
the
$725,000,000 aggregate principal amount of 11.875% / 12.625% Senior Toggle
Subordinated Notes due 2017 issued by the Issuer under the Senior Subordinated
Indenture on the Issue Date.
“
Shelf
Registration Statement
”
means
the Shelf Registration Statement as defined in the Registration Rights
Agreement.
“
Significant
Subsidiary
”
means
any Restricted Subsidiary that would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such regulation is in effect on the Issue Date.
“
Similar
Business
”
means
any business conducted or proposed to be conducted by the Issuer and its
Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.
“
Special
Interest
”
means
all additional interest then owing pursuant to the Registration Rights
Agreement.
“
Sponsor
Management Agreement
”
means
the management agreement between certain of the management companies associated
with the Investors and the Issuer.
“
Subordinated
Indebtedness
”
means,
with respect to the Notes,
(1)
any
Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and
(2)
any
Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Notes.
“
Subsidiary
”
means,
with respect to any Person:
(1)
any
corporation, association, or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of determination owned
or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof or is consolidated under
GAAP with such Person at such time; and
(2)
any
partnership, joint venture, limited liability company or similar entity of
which
(x)
more
than
50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise,
and
(y)
such
Person or any Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.
“
Total
Assets
”
means
the total assets of the Issuer and its Restricted Subsidiaries on a consolidated
basis, as shown on the most recent consolidated balance sheet of the Issuer
or
such other Person as may be expressly stated.
“
Transactions
”
means
the
acquisition of all of the outstanding capital stock of Dollar General
Corporation, including the payment of the acquisition consideration in
connection therewith, the equity investment by the Investors and members of
management, the issuance of the Notes and the Senior Subordinated Notes, the
tender offer and consent solicitation for any and all of the outstanding
8
5
¤
8
%
Notes
due 2010 of Dollar General Corporation and the execution of, and borrowings
on
the Issue Date under, the Senior Credit Facilities and, the pledge and security
arrangements in connection with the foregoing, in each case as in effect on
the
Issue Date, and the related transactions described in the Offering Circular
under the section thereof entitled “Offering Circular Summary—The
Transactions.”
“
Treasury
Rate
”
means,
as of any Redemption Date, the yield to maturity as of such Redemption Date
of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two Business Days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar market data)) most nearly equal to
the
period from the Redemption Date to July 15, 2011;
provided
,
however
,
that if
the period from the Redemption Date to July 15, 2011 is less than one year,
the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.
“
Trust
Indenture Act
”
means
the Trust Indenture Act of 1939, as amended (15 U.S.C
§§ 77aaa-777bbbb).
“
Trustee
”
means
Wells Fargo Bank, National Association, as trustee, until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
“
Unrestricted
Definitive Note
”
means
one or more Definitive Notes that do not bear and are not required to bear
the
Private Placement Legend.
“
Unrestricted
Global Note
”
means
a
permanent Global Note, substantially in the form of
Exhibit A
that
bears the Global Note Legend and that has the “Schedule of Exchanges of
Interests in the Global Note” attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing Notes
that
do not bear the Private Placement Legend.
“
Unrestricted
Subsidiary
”
means:
(1)
any
Subsidiary of the Issuer which at the time of determination is an Unrestricted
Subsidiary (as designated by the Issuer, as provided below); and
(2)
any
Subsidiary of an Unrestricted Subsidiary.
The
Issuer may designate any Subsidiary of the Issuer (including any existing
Subsidiary and any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Equity Interests or Indebtedness of, or owns or holds any Lien on, any
property of, the Issuer or any Subsidiary of the Issuer (other than solely
any
Subsidiary of the Subsidiary to be so designated);
provided
that:
(1)
any
Unrestricted Subsidiary must be an entity of which the Equity Interests entitled
to cast at least a majority of the votes that may be cast by all Equity
Interests having ordinary voting power for the election of directors or Persons
performing a similar function are owned, directly or indirectly, by the
Issuer;
(2)
such
designation complies with Section 4.07 hereof; and
(3)
each
of:
(a)
the
Subsidiary to be so designated; and
(b)
its
Subsidiaries
has
not
at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with respect
to
any
Indebtedness pursuant to which the lender has recourse to any of the assets
of
the Issuer or any Restricted Subsidiary.
The
Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
that,
immediately after giving effect to such designation, no Default shall have
occurred and be continuing and either:
(1)
the
Issuer could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;
or
(2)
the
Fixed
Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would
be
greater than such ratio for the Issuer and its Restricted Subsidiaries
immediately prior to such designation,
in
each
case on a
pro
forma
basis
taking into account such designation.
Any
such
designation by the Issuer shall be notified by the Issuer to the Trustee by
promptly filing with the Trustee a copy of the resolution of the board of
directors of the Issuer or any committee thereof giving effect to such
designation and an Officer’s Certificate certifying that such designation
complied with the foregoing provisions.
“
U.S.
Person
”
means
a
U.S. person as defined in Rule 902(k) under the Securities Act.
“
Voting
Stock
”
of
any
Person as of any date means the Capital Stock of such Person that is at the
time
entitled to vote in the election of the board of directors of such
Person.
“
Weighted
Average Life to Maturity
”
means,
when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as
the
case may be, at any date, the quotient obtained by dividing:
(1)
the
sum
of the products of the number of years from the date of determination to the
date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock or
Preferred Stock multiplied by the amount of such payment; by
(2)
the
sum
of all such payments.
“
Wholly-Owned
Subsidiary
”
of
any
Person means a Subsidiary of such Person, 100% of the outstanding Equity
Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such
Person.
Section
1.02
|
Other Definitions
.
|
Term
|
Defined
in
Section
|
“Acceptable
Commitment”
|
4.10
|
“Affiliate
Transaction”
|
4.11
|
“Asset
Sale Offer”
|
4.10
|
“Authentication
Order”
|
2.02
|
“AHYDO
Redemption Date”
|
3.08
|
“Change
of Control Offer”
|
4.14
|
“Change
of Control Payment”
|
4.14
|
“Change
of Control Payment Date”
|
4.14
|
“Covenant
Defeasance”
|
8.03
|
“DTC”
|
2.03
|
“Event
of Default”
|
6.01
|
“Excess
Proceeds”
|
4.10
|
“incur”
|
4.09
|
“Legal
Defeasance”
|
8.02
|
“Mandatory
Principal Redemption”
|
3.08
|
“Mandatory
Principal Redemption Amount”
|
3.08
|
“Note
Register”
|
2.03
|
“Offer
Amount”
|
3.09
|
“Offer
Period”
|
3.09
|
“Paying
Agent”
|
2.03
|
“Purchase
Date”
|
3.09
|
“Redemption
Date”
|
3.07
|
“Refinancing
Indebtedness”
|
4.09
|
“Refunding
Capital Stock”
|
4.07
|
“Registrar”
|
2.03
|
“Restricted
Payments”
|
4.07
|
“Second
Commitment”
|
4.10
|
“Successor
Company”
|
5.01
|
|
|
Term
|
Defined in
Section
|
|
|
“Successor
Person”
|
5.01
|
“Treasury
Capital Stock”
|
4.07
|
Section
1.03
|
Incorporation by Reference of Trust Indenture
Act
.
|
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.
The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
“indenture
securities” means the Notes;
“indenture
security Holder” means a Holder of a Note;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the Notes and the Guarantees means the Issuer and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees,
respectively.
All
other
terms used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or defined by SEC
rule under the Trust Indenture Act have the meanings so assigned to
them.
Section
1.04
|
Rules of Construction
.
|
Unless
the context otherwise requires:
(a)
a
term
has the meaning assigned to it;
(b)
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
“or”
is
not exclusive;
(d)
words
in
the singular include the plural, and in the plural include the
singular;
(e)
“will”
shall be interpreted to express a command;
(f)
provisions
apply to successive events and transactions;
(g)
references
to sections of, or rules under, the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time;
(h)
unless
the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this
Indenture; and
(i)
the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not any particular Article, Section, clause or
other subdivision.
Section
1.05
|
Acts of Holders
.
|
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to
the Trustee and, where it is hereby expressly required, to the Issuer. Proof
of
execution of any such instrument or of a writing appointing any such agent,
or
the holding by any Person of a Note, shall be sufficient for any purpose of
this
Indenture and (subject to Section 7.01) conclusive in favor of the Trustee
and
the Issuer, if made in the manner provided in this Section 1.05.
(b)
The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c)
The
ownership of Notes shall be proved by the Note Register.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Note shall bind every future Holder of the same
Note
and the Holder of every Note issued upon the registration of transfer thereof
or
in exchange therefor or in lieu thereof, in respect of any action taken,
suffered or omitted by the Trustee or the Issuer in reliance thereon, whether
or
not notation of such action is made upon such Note.
(e)
The
Issuer may, in the circumstances permitted by the Trust Indenture Act, set
a
record date for purposes of determining the identity of Holders entitled to
give
any request, demand, authorization, direction, notice, consent, waiver or take
any other act, or to vote or consent to any action by vote or consent authorized
or permitted to be given or taken by Holders. Unless otherwise specified, if
not
set by the Issuer prior to the first solicitation of a Holder made by any Person
in respect of any such action, or in the case of any such vote, prior to such
vote, any such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation.
(f)
Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Note may do so with regard to all or any part of the
principal amount of such Note or by one or more duly appointed agents, each
of
which may do so pursuant to such appointment with regard to all or any part
of
such principal amount. Any notice given or action taken by a Holder or
its
agents with regard to different parts of such principal amount pursuant to
this
paragraph shall have the same effect as if given or taken by separate Holders
of
each such different part.
(g)
Without
limiting the generality of the foregoing, a Holder, including DTC that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given
or
taken by Holders, and DTC that is the Holder of a Global Note may provide its
proxy or proxies to the beneficial owners of interests in any such Global Note
through such depositary’s standing instructions and customary
practices.
(h)
The
Issuer may fix a record date for the purpose of determining the Persons who
are
beneficial owners of interests in any Global Note held by DTC entitled under
the
procedures of such depositary to make, give or take, by a proxy or proxies
duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given
or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall
be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other action shall be valid or effective
if made, given or taken more than 90 days after such record date.
ARTICLE
2
THE
NOTES
Section
2.01
|
Form and Dating; Terms
.
|
(a)
General
.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of
Exhibit
A
hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rules or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof.
(b)
Global
Notes
.
Notes
issued in global form shall be substantially in the form of
Exhibit
A
hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form
shall be substantially in the form of
Exhibit
A
attached
hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified in the
“Schedule of Exchanges of Interests in the Global Note” attached thereto and
each shall provide that it shall represent up to the aggregate principal amount
of Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced
or increased, as applicable, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby
shall
be made by the Trustee or the Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
(c)
Terms
.
The
aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms
and provisions and to be bound thereby. However, to the extent any provision
of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
The
Notes
shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer
as
provided in Section 4.10 hereof or a Change of Control Offer as provided in
Section 4.14 hereof. The Notes shall not be redeemable, other than as provided
in Article 3.
Additional
Notes ranking
pari
passu
with the
Initial Notes may be created and issued from time to time by the Issuer without
notice to or consent of the Holders and shall be consolidated with and form
a
single class with the Initial Notes and shall have the same terms as to status,
redemption or otherwise as the Initial Notes;
provided
that the
Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s
compliance with Section 4.09 hereof. Any Additional Notes shall be issued with
the benefit of an indenture supplemental to this Indenture.
(d)
Euroclear
and Clearstream Procedures Applicable
.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Notes that
are
held by Participants through Euroclear or Clearstream.
Section
2.02
|
Execution and
Authentication
.
|
At
least
one Officer shall execute the Notes on behalf of the Issuer by manual or
facsimile signature.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose until authenticated substantially in the form
provided for in
Exhibit
A
attached
hereto, by the manual or facsimile signature of the Trustee. The signature
shall
be conclusive evidence that the Note has been duly authenticated and delivered
under this Indenture.
On
the
Issue Date, the Trustee shall, upon receipt of an Issuer Order (an “
Authentication
Order
”),
authenticate and deliver Notes. In addition, at any time, from time to time,
the
Trustee shall upon an Authentication Order authenticate and deliver any (i)
Additional Notes and (ii) Exchange Notes or private exchange notes for issue
only in an Exchange Offer or a private exchange, respectively, pursuant to
a
Registration Rights Agreement, for a like principal amount of Initial Notes.
Such Authentication Order shall specify the amount of the Notes to be
authenticated and, in the case of any issuance of Additional Notes pursuant
to
Section 2.01 hereof, shall certify that such issuance is in compliance with
Section 4.09 of this Indenture.
The
Trustee may appoint an authenticating agent acceptable to the Issuer to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the
same rights as an Agent to deal with Holders or an Affiliate of the
Issuer.
Section
2.03
|
Registrar and Paying Agent
.
|
The
Issuer shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“
Registrar
”)
and an
office or agency where Notes may be presented for payment (“
Paying
Agent
”).
The
Registrar shall keep a register of the Notes (“
Note
Register
”)
and of
their transfer and exchange. The Issuer may appoint one or more co-registrars
and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent.
The Issuer may change any Paying Agent or Registrar without prior notice to
any
Holder. The Issuer shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Issuer fails to appoint
or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as
such. The Issuer or any of its Subsidiaries may act as Paying Agent or
Registrar.
The
Issuer initially appoints The Depository Trust Company (“
DTC
”)
to act
as Depositary with respect to the Global Notes.
The
Issuer initially appoints the Trustee to act as the Paying Agent and Registrar
for the Notes and to act as Custodian with respect to the Global
Notes.
Section
2.04
|
Paying Agent to Hold Money in
Trust
.
|
The
Issuer shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or Special Interest, if any, or interest on the Notes, and
will
notify the Trustee of any default by the Issuer in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay
all money held by it to the Trustee. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall
have
no further liability for the money. If the Issuer or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve
as
Paying Agent for the Notes.
Section
2.05
|
Holder Lists
.
|
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee
is not the Registrar, the Issuer shall furnish to the Trustee at least two
Business Days before each Interest Payment Date and at such other times as
the
Trustee may request in writing, a list in such form and as of such date as
the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuer shall otherwise comply with Trust Indenture Act Section
312(a).
Section
2.06
|
Transfer and Exchange
.
|
(a)
Transfer
and Exchange of Global Notes
.
Except
as otherwise set forth in this Section 2.06, a Global Note may be transferred,
in whole and not in part, only to another nominee of the Depositary or to a
successor Depositary or a nominee of such successor Depositary. A beneficial
interest in a Global Note may not be exchanged for a Definitive Note unless
(i)
the Depositary (x) notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Global Note or (y) has ceased to be
a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Issuer within 120 days or
(ii) there shall have occurred and be continuing a Default with respect to
the Notes. Upon the occurrence of any of the preceding events in (i) or (ii)
above, Definitive Notes delivered in exchange for any Global Note or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance
with
its customary procedures). Global Notes also may be exchanged or replaced,
in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note
or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note, except for Definitive Notes issued subsequent to any of the preceding
events in (i) or (ii) above and pursuant to Section 2.06(c) hereof. A Global
Note may not be exchanged for another Note other than as provided in this
Section 2.06(a);
provided
,
however
,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b)
Transfer
and Exchange of Beneficial Interests in the Global Notes
.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more
of
the other following subparagraphs, as applicable:
(i)
Transfer
of Beneficial Interests in the Same Global Note
.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in
the Private Placement Legend;
provided
,
however
,
that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S. Person
or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required
to
be delivered to the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii)
All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes
.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest
must deliver to the Registrar either (A) both (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause
to be
credited a beneficial interest in another Global Note in an amount equal to
the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) both (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered
to
effect the transfer or exchange referred to in (1) above. Upon consummation
of
an Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof,
the
requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global
Notes.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust
the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(iii)
Transfer
of Beneficial Interests to Another Restricted Global Note
.
A
beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
2.06(b)(ii) hereof and the Registrar receives the following:
(A)
if
the
transferee will take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of
Exhibit
B
hereto,
including the certifications in item (1) thereof; or
(B)
if
the
transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in
the
form of
Exhibit
B
hereto,
including the certifications in item (2) thereof.
(iv)
Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note
.
A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) hereof and:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the transferee, in the case
of
a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a
beneficial
interest in an
Unrestricted Global Note, a certificate from such Holder substantially in the
form of
Exhibit C
hereto,
including the
certifications
in item (1)(a)
thereof; or
(2)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person
who
shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of
Exhibit B
hereto,
including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If
any such
transfer is effected pursuant to subparagraph (B) or (D) above at a time when
an
Unrestricted Global Note has not yet been issued, the Issuer shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest
in a
Restricted Global Note.
(c)
Transfer
or Exchange of Beneficial Interests for Definitive Notes
.
(i)
Beneficial
Interests in Restricted Global Notes to Restricted Definitive
Notes
.
If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon the occurrence of any of the events
in
paragraph (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar
of
the following documentation:
(A)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted
Definitive
Note, a
certificate from such holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (2)(a) thereof;
(B)
if
such
beneficial interest is being transferred to a QIB in accordance with Rule 144A,
a certificate substantially in the form of
Exhibit B
hereto,
including the
certifications in item (1) thereof;
(C)
if
such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904,
a
certificate
substantially in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof;
(D)
if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance
with Rule
144, a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(a) thereof;
(E)
if
such
beneficial interest is being transferred to the Issuer or any of its Restricted
Subsidiaries, a certificate substantially in the form of
Exhibit
B
hereto,
including the certifications in item (3)(b) thereof; or
(F)
if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate
substantially
in the
form of
Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global
Note
to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer
shall execute and the Trustee shall authenticate and mail to the Person
designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest in
a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall mail such Definitive Notes to the Persons in whose names
such
Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions
on
transfer contained therein.
(ii)
Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive
Notes
.
A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only upon the occurrence of any of the events
in
subsection (i) or (ii) of Section 2.06(a) hereof and if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the
holder
of
such beneficial interest, in the case of an exchange, or the transferee, in
the
case of a transfer, certifies in the applicable Letter of Transmittal that
it is
not
(1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive
Note, a
certificate from such holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(b) thereof; or
(2)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take
delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from such holder
substantially in the form of
Exhibit B
hereto,
including
the
certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii)
Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes
.
If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes
delivery
thereof in the form of a Definitive Note, then, upon the occurrence of any
of
the events in subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction
of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be
reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute
and
the Trustee shall authenticate and mail to the Person designated in the
instructions a Definitive Note in the applicable principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to
this
Section 2.06(c)(ii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from or through
the
Depositary and the Participant or Indirect Participant. The Trustee shall
mail
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(ii) shall not bear the Private Placement
Legend.
(d)
Transfer
and Exchange of Definitive Notes for Beneficial Interests
.
(i)
Restricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes
.
If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A)
if
the
Holder of such Restricted Definitive Note proposes to exchange such Note for
a
beneficial interest in a Restricted Global Note, a
certificate
from such Holder
substantially in the form of
Exhibit C
hereto,
including the certifications in item (2)(b) thereof;
(B)
if
such
Restricted Definitive Note is being transferred to a QIB in accordance with
Rule
144A, a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (1) thereof;
(C)
if
such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule
904,
a certificate substantially
in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof;
(D)
if
such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in
accordance
with Rule 144, a
certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(a) thereof;
(E)
if
such
Restricted Definitive Note is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(b) thereof; or
(F)
if
such
Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate
substantially
in the form of
Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the applicable Restricted Global Note, in the case of clause (B) above, the
applicable 144A Global Note, and in the case of clause (C) above, the applicable
Regulation S Global Note.
(ii)
Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes
.
A
Holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note only if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the
Holder,
in the case
of an exchange, or the transferee, in the case of a transfer, certifies in
the
applicable Letter of Transmittal that it is not (1) a Broker-
Dealer,
(2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who
is
an affiliate (as defined in Rule 144) of the Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights
Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate
from such
Holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(c) thereof; or
(2)
if
the
Holder of such Definitive Notes proposes to transfer such Notes to a Person
who
shall take delivery thereof in the form of a
beneficial
interest in the Unrestricted Global Note, a certificate from such Holder
substantially in the form of
Exhibit B
hereto,
including the
certifications
in
item
(4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or
cause
to be increased the aggregate principal amount of the Unrestricted Global
Note.
(iii)
Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes
.
A
Holder of an Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a request
for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If
any such exchange
or transfer from a Definitive Note to a beneficial interest is effected pursuant
to subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt
of
an Authentication Order in accordance with
Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e)
Transfer
and Exchange of Definitive Notes for Definitive Notes
.
Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer
or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar
the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder
or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e):
(i)
Restricted
Definitive Notes to Restricted Definitive Notes
.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if
the Registrar receives the following:
(A)
if
the
transfer will be made pursuant to a QIB in accordance with Rule 144A, then
the
transferor must deliver a certificate substantially in
the
form of
Exhibit B
hereto,
including the certifications in item (1) thereof;
(B)
if
the
transfer will be made pursuant to Rule 903 or Rule 904 then the transferor
must
deliver a certificate in the form of
Exhibit B
hereto,
including the
certifications in item (2) thereof; or
(C)
if
the
transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor
must
deliver a certificate in the
form of
Exhibit B
hereto,
including the certifications required by item (3) thereof, if
applicable.
(ii)
Restricted
Definitive Notes to Unrestricted Definitive Notes
.
Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the
Holder,
in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer,
(2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who
is
an affiliate (as defined in Rule 144) of the
Issuer;
(B)
any
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
any
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration
Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for
an Unrestricted Definitive Note, a
certificate
from such
Holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(d) thereof; or
(2)
if
the
Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a
Person who shall take delivery thereof
in
the form of an
Unrestricted Definitive Note, a certificate from such Holder substantially
in
the form of
Exhibit B
hereto,
including the
certifications
in
item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the
Securities Act.
(iii)
Unrestricted
Definitive Notes to Unrestricted Definitive Notes
.
A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
(f)
Exchange
Offer
.
Upon
the occurrence of an Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i)
one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not participating
in a distribution of any Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Issuer, and accepted for exchange in the Exchange
Offer and (ii) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes tendered
for acceptance by Persons that certify in the applicable Letters of Transmittal
that (x) they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuer, and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Issuer shall execute and the Trustee shall
authenticate and mail to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the applicable principal
amount. Any Notes that remain outstanding after the consummation of an Exchange
Offer, and Exchange Notes issued in connection with an Exchange Offer, shall
be
treated as a single class of securities under this Indenture.
(g)
Legends
.
The
following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture:
(i)
Private
Placement Legend
.
(A)
Except
as
permitted by subparagraph (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution therefor) shall
bear
the legend in substantially the following form:
THE
NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES AND OTHER JURISDICTIONS.
(B)
Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)
(iii),
(e)(ii),
(e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
(ii)
Global
Note Legend
.
Each
Global Note shall bear a legend in substantially the following
form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REG-
ISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.”
(h)
Cancellation
and/or Adjustment of Global Notes
.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned
to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall
be
reduced accordingly and an endorsement shall be made on such Global Note by
the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such
increase.
(i)
General
Provisions Relating to Transfers and Exchanges
.
(i)
To
permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of
an
Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.
(ii)
No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14
and
9.05 hereof).
(iii)
Neither
the Registrar nor the Issuer shall be required to register the transfer of
or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv)
All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v)
The
Issuer shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption
in
whole or in part, except the unredeemed portion of any Note being redeemed
in
part or (C) to register the transfer of or to exchange a Note between a Record
Date and the next succeeding Interest Payment Date.
(vi)
Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Issuer may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of (and premium, if any) and interest (including Special
Interest, if any) on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuer shall be affected by notice to the
contrary.
(vii)
Upon
surrender for registration of transfer of any Note at the office or agency
of
the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute,
and the Trustee shall authenticate and mail, in the name of the designated
transferee or transferees, one or more replacement Notes of any authorized
denomination or denominations of a like aggregate principal amount.
(viii)
At
the
option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Global Notes or Definitive Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and mail, the replacement
Global Notes and Definitive Notes which the Holder making the exchange is
entitled to in accordance with the provisions of Section 2.02
hereof.
(ix)
All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
Section
2.07
|
Replacement Notes
.
|
If
any
mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and
the Trustee receives evidence to its satisfaction of the ownership and
destruction, loss or theft of any Note, the Issuer shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee’s requirements are met. If required by the Trustee or the Issuer,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee,
any
Agent and any authenticating agent from any loss that any of them may suffer
if
a Note is replaced. The Issuer may charge for its expenses in replacing a
Note.
Every
replacement Note is a contractual obligation of the Issuer and shall be entitled
to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
Section
2.08
|
Outstanding Notes
.
|
The
Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section
2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not
cease to be outstanding because the Issuer or an Affiliate of the Issuer holds
the Note.
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a bona fide purchaser.
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to
pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue
interest.
Section
2.09
|
Treasury Notes
.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer, or
by
any Affiliate of the Issuer, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
a
Responsible Officer of the Trustee knows are so owned, upon receipt of an
Officer’s Certificate shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to
the
satisfaction of the Trustee the pledgee’s right to deliver any such direction,
waiver or consent with respect to the Notes and that the pledgee is not the
Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such
other obligor.
Section
2.10
|
Temporary Notes
.
|
Until
certificates representing Notes are ready for delivery, the Issuer may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Issuer considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Holders
and beneficial holders, as the case may be, of temporary Notes shall be entitled
to all of the benefits accorded to Holders, or beneficial holders, respectively,
of Notes under this Indenture.
Section
2.11
|
Cancellation
.
|
The
Issuer at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. The Trustee or, at
the
direction of the Trustee, the Registrar or the Paying Agent and no one else
shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy cancelled Notes (subject
to the record retention requirement of the Exchange Act). Certification of
the
destruction of all cancelled Notes shall be delivered to the Issuer. The Issuer
may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.
Section
2.12
|
Defaulted Cash Interest
.
|
If
the
Issuer defaults in a payment of cash interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the
amount of defaulted cash interest proposed to be paid on each Note and the
date
of the proposed payment, and at the same time the Issuer shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such defaulted interest or shall make arrangements satisfactory
to
the
Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such
defaulted interest as provided in this Section 2.12. The Trustee shall fix or
cause to be fixed each such special record date and payment date;
provided
that no
such special record date shall be less than 10 days prior to the related
payment
date for such defaulted interest. The Trustee shall promptly notify the Issuer
of such special record date. At least 15 days before the special record date,
the Issuer (or, upon the written request of the Issuer, the Trustee in the
name
and at the expense of the Issuer) shall mail or cause to be mailed, first-class
postage prepaid, to each Holder a notice at his or her address as it appears
in
the Note Register that states the special record date, the related payment
date
and the amount of such interest to be paid.
Subject
to the foregoing provisions of this Section 2.12 and for greater certainty,
each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other
Note.
Section
2.13
|
CUSIP and ISIN Numbers
.
|
The
Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally
in use) and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices
of redemption as a convenience to Holders;
provided
,
that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice
of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected
by
any defect in or omission of such numbers. The Issuer will as promptly as
practicable notify the Trustee of any change in the CUSIP or ISIN
numbers.
ARTICLE
3
REDEMPTION
Section
3.01
|
Notices to Trustee
.
|
If
the
Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish
to the Trustee, at least 2 Business Days before notice of redemption is required
to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof
but not more than 60 days before a Redemption Date, an Officer’s Certificate
setting forth (i) the paragraph or subparagraph of such Note and/or Section
of
this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of the Notes to be redeemed and (iv) the
redemption price.
Section
3.02
|
Selection of Notes to Be Redeemed or
Purchased
.
|
If
less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee shall select the Notes to be redeemed or purchased
(a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed, (b) on a
pro
rata
basis or
(c) by lot or by such other method in accordance with the procedures of
DTC. In the event of partial redemption or purchase by lot, the particular
Notes
to be redeemed or purchased shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Notes not previously called for redemption or
purchase.
The
Trustee shall promptly notify the Issuer in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected shall be in amounts of $2,000
or
whole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can
be
redeemed in part, except that if all of the Notes of a Holder are to be redeemed
or purchased, the entire outstanding amount of Notes held by such Holder, even
if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed
or
purchased. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption or purchase also apply
to
portions of Notes called for redemption or purchase.
Section
3.03
|
Notice of Redemption.
|
Subject
to Sections 3.09 hereof, the Issuer shall mail or cause to be mailed by
first-class mail notices of redemption at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Holder’s registered address or otherwise in accordance with the procedures of
DTC, except that redemption notices may be mailed more than 60 days prior to
a
Redemption Date if the notice is issued in connection with Article 8 or Article
13 hereof. Except as set forth in Section 3.07(e) hereof, notices of redemption
may not be conditional.
The
notice shall identify the Notes to be redeemed and shall state:
(a)
the
Redemption Date;
(b)
the
redemption price;
(c)
if
any
Note is to be redeemed in part only, the portion of the principal amount of
that
Note that is to be redeemed and that, after the Redemption Date upon surrender
of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion of the original Note representing the same indebtedness to the extent
not redeemed will be issued in the name of the Holder of the Notes upon
cancellation of the original Note;
(d)
the
name
and address of the Paying Agent;
(e)
that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f)
that,
unless the Issuer defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption
Date;
(g)
the
paragraph or subparagraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed;
(h)
that
no
representation is made as to the correctness or accuracy of the CUSIP and/or
ISIN number, if any, listed in such notice or printed on the Notes;
and
(i)
if
in
connection with a redemption pursuant to Section 3.07(c) or 3.07(d) hereof,
any
condition to such redemption.
At
the
Issuer’s request, the Trustee shall give the notice of redemption in the
Issuer’s name and at its expense;
provided
that the
Issuer shall have delivered to the Trustee, at least 2 Business
Days
before notice of redemption is required to be mailed or caused to be mailed
to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed
to by the Trustee), an Officer’s Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice
as
provided in the preceding paragraph.
Section
3.04
|
Effect of Notice of
Redemption
.
|
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the Redemption
Date
at the redemption price (except as provided for in Section 3.07(e) hereof).
The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to
have been given, whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the Holder
of
any Note designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note. Subject to
Section 3.05 hereof, on and after the redemption date, interest ceases to accrue
on Notes or portions thereof called for redemption.
Section
3.05
|
Deposit of Redemption or Purchase
Price
.
|
Prior
to
10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer
shall deposit with the Trustee or with the Paying Agent money sufficient to
pay
the redemption or purchase price of and accrued and unpaid interest (including
Special Interest, if any) on all Notes to be redeemed or purchased on that
date.
The Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid
interest on, all Notes to be redeemed or purchased.
If
the
Issuer complies with the provisions of the preceding paragraph, on and after
the
redemption or purchase date, interest shall cease to accrue on the Notes or
the
portions of Notes called for redemption or purchase. If a Note is redeemed
or
purchased on or after a Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest to the redemption or purchase
date shall be paid to the Person in whose name such Note was registered at
the
close of business on such Record Date. If any Note called for redemption or
purchase shall not be so paid upon surrender for redemption or purchase because
of the failure of the Issuer to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption or purchase date
until such principal is paid, and to the extent lawful on any interest accrued
to the redemption or purchase date not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
Section
3.06
|
Notes Redeemed or Purchased in
Part
.
|
Upon
surrender of a Note that is redeemed or purchased in part, the Issuer shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Issuer a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered representing the same indebtedness to the extent
not redeemed or purchased;
provided
that
each new Note will be in a principal amount of $2,000 or an integral multiple
of
$1,000 in excess thereof. It is understood that, notwithstanding anything in
this Indenture to the contrary, only an Authentication Order and not an Opinion
of Counsel or Officer’s Certificate is required for the Trustee to authenticate
such new Note.
Section
3.07
|
Optional Redemption
.
|
(a)
Except
as
set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to
July
15
,
2011.
(b)
At
any
time prior to July 15, 2011, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class
mail to the registered address of each Holder of Notes or otherwise in
accordance with the procedures of DTC, at a redemption price equal to 100%
of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Special Interest, if any, to the date of
redemption (the “
Redemption
Date
”),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(c)
On
and
after July 15, 2011, the Issuer may redeem the Notes, in whole or in part,
upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to the registered address of each Holder of Notes or otherwise in accordance
with the procedures of DTC, at the redemption prices (expressed as percentages
of principal amount of the Notes to be redeemed) set forth below, plus accrued
and unpaid interest thereon and Special Interest, if any, to the applicable
Redemption Date, subject to the right of Holders Notes of record on the relevant
record date to receive interest due on the relevant interest payment date,
if
redeemed during the twelve-month period beginning on July 15 of each of the
years indicated below:
Year
|
Percentage
|
2011
|
105.313%
|
2012
|
102.656%
|
2013
and thereafter
|
100.000%
|
(d)
In
addition, until July 15, 2010, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Notes at a
redemption price equal to 110.625% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and Special Interest, if any, to the
applicable Redemption Date, subject to the right of Holders of Notes of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at
least 50% of the sum of the original aggregate principal amount of Notes issued
under this Indenture and the original principal amount of any Additional Notes
issued under this Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption;
provided
further
that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering.
(e)
Any
notice of any redemption may be given prior to the redemption thereof, and
any
such redemption or notice may, at the Issuer’s discretion, be subject to one or
more conditions precedent, including, but not limited to, completion of an
Equity Offering or other corporate transaction.
(f)
If
the
Issuer redeems less than all of the outstanding Notes, the Trustee shall select
the Notes to be redeemed in the manner described under Section 3.02
hereof.
Section
3.08
|
Mandatory Redemption
.
|
The
Issuer will not be required to make any mandatory redemption or sinking fund
payments with respect to the Notes.
Section
3.09
|
Asset Sales
.
|
(a)
In
the
event that, pursuant to Section 4.10 hereof, the Issuer shall be required to
commence an Asset Sale Offer, it shall follow the procedures specified
below.
(b)
The
Asset
Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is
required by applicable law (the “
Offer
Period
”).
No
later than five Business Days after the termination of the Offer Period (the
“
Purchase
Date
”),
the
Issuer shall apply all Excess Proceeds (the “
Offer
Amount
”)
to the
purchase of Notes and, if required or permitted by the terms thereof, any Senior
Indebtedness (on a
pro
rata
basis),
or, if less than the Offer Amount has been tendered, all Notes and Senior
Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes
so purchased shall be made in the same manner as interest payments are
made.
(c)
If
the
Purchase Date is on or after a Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest and Special Interest, if any,
up
to but excluding the Purchase Date, shall be paid to the Person in whose name
a
Note is registered at the close of business on such Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to
the
Asset Sale Offer.
(d)
Upon
the
commencement of an Asset Sale Offer, the Issuer shall send, by first-class
mail,
a notice to each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders and holders of Senior Indebtedness. The notice, which shall
govern the terms of the Asset Sale Offer, shall state:
(i)
that
the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer shall remain
open;
(ii)
the
Offer
Amount, the purchase price and the Purchase Date;
(iii)
that
any
Note not tendered or accepted for payment shall continue to accrue
interest;
(iv)
that,
unless the Issuer defaults in making such payment, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after the
Purchase Date;
(v)
that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in the minimum amount of $2,000 or an integral
multiple of $1,000 in excess thereof only;
(vi)
that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall
be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” attached to the Note completed, or transfer by book-entry
transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying
Agent at the address specified in the notice at least three days before the
Purchase Date;
(vii)
that
Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a facsimile transmission or letter setting
forth
the name of the Holder, the principal
amount
of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(viii)
that,
if
the aggregate principal amount of Notes and Senior Indebtedness surrendered
by
the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes
and such Senior Indebtedness to be purchased on a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered (with such adjustments as may be deemed appropriate by
the
Trustee so that only Notes in minimum denominations of $2,000, or integral
multiples of $1,000 in excess thereof, shall be purchased); and
(ix)
that
Holders whose Notes were purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the
extent not repurchased.
(e)
On
or
before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept
for
payment, on a
pro
rata
basis to
the extent necessary, the Offer Amount of Notes or portions thereof validly
tendered pursuant to the Asset Sale Offer or, if less than the Offer Amount
has
been tendered, all Notes tendered and (2) deliver or cause to be delivered
to
the Trustee the Notes properly accepted together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions thereof so
tendered.
(f)
The
Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes properly tendered by such Holder and accepted by the Issuer for
purchase, and the Issuer shall promptly issue a new Note, and the Trustee,
upon
receipt of an Authentication Order, shall authenticate and mail or deliver
(or
cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary,
no
Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate and mail or deliver such new Note) in a principal amount equal
to
any unpurchased portion of the Note surrendered representing the same
indebtedness to the extent not repurchased;
provided
that
each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly
mailed or delivered by the Issuer to the Holder thereof. The Issuer shall
publicly announce the results of the Asset Sale Offer on or as soon as
practicable after the Purchase Date.
Other
than as specifically provided in this Section 3.09 or Section 4.10, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE
4
COVENANTS
Section
4.01
|
Payment of Notes
.
|
The
Issuer shall pay or cause to be paid the principal of, premium, if any, Special
Interest, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, cash Special Interest, if
any, and cash interest shall be considered paid on the date due if the Paying
Agent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time
on the due date money deposited by the Issuer in immediately available funds
and
designated for and sufficient to pay all principal, premium, if any, and
interest then due.
The
Issuer shall pay all Special Interest, if any, in the same manner on the dates
and in the amounts set forth in any Registration Rights Agreement.
The
Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section
4.02
|
Maintenance of Office or
Agency
.
|
The
Issuer shall maintain in Minneapolis, Minnesota an office or agency (which
may
be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or
for
exchange and where notices and demands to or upon the Issuer in respect of
the
Notes and this Indenture may be served. The Issuer shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The
Issuer may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided
that no
such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in Minneapolis, Minnesota for such
purposes. The Issuer shall give prompt written notice to the Trustee of any
such
designation or rescission and of any change in the location of any such other
office or agency.
The
Issuer hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Issuer in accordance with Section 2.03
hereof.
Section
4.03
|
Reports and Other
Information
.
|
(a)
Notwithstanding
that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual
and quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the SEC, the Issuer shall
file
with the SEC (and make available to the Trustee and Holders of the Notes
(without exhibits), without cost to any Holder, within 15 days after the
Issuer files with the SEC) from and after the Issue Date,
(1)
within
90 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K
by a non-accelerated filer) after the end of each fiscal year, annual reports
on
Form 10-K, or any successor or comparable form, containing the information
required to be contained therein, or required in such successor or comparable
form;
(2)
within
45
days after the end of each of the first three fiscal quarters of each fiscal
year, reports on Form 10-Q containing all information that would be
required to be contained in Form 10-Q, or any successor or comparable
form;
(3)
promptly
from time to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K, or any successor or comparable
form; and
(4)
any
other
information, documents and other reports which the Issuer would be required
to
file with the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act;
in
each
case in a manner that complies in all material respects with the requirements
specified in such form;
provided
that the
Issuer shall not be so obligated to file such reports with the SEC if the SEC
does not permit such filing, in which event the Issuer shall make available
such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders of the Notes, in each case within
15
days after the time the Issuer would be required to file such information with
the SEC if it were subject to Section 13 or 15(d) of the Exchange Act. In
addition, to the extent not satisfied by the foregoing, the Issuer shall, for
so
long as any Notes are outstanding, furnish or otherwise make available to
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
In
the
event that any direct or indirect parent company of the Issuer becomes a
Guarantor of the Notes, the Issuer may satisfy its obligations under this
Section 4.03 with respect to financial information relating to the Issuer by
furnishing financial information relating to such parent;
provided
that the
same is accompanied by consolidating information that explains in reasonable
detail the differences between the information relating to such parent, on
the
one hand, and the information relating to the Issuer and its Restricted
Subsidiaries on a standalone basis, on the other hand.
Notwithstanding
the foregoing, the requirements of this Section 4.03 shall be deemed satisfied
prior to the commencement of the Exchange Offer or the effectiveness of the
Shelf Registration Statement described in the Registration Rights Agreement
dated the date hereof (1) by the filing with the SEC of the Exchange Offer
Registration Statement or Shelf Registration Statement (or any other similar
registration statement), and any amendments thereto, with such financial
information that satisfies Regulation S-X, subject to exceptions consistent
with
the presentation of financial information in the Offering Circular, to the
extent filed within the times specified above, or (2) by posting reports
that would be required to be filed substantially in the form required by the
SEC
on the Issuer’s website (or that of any of its parent companies) or providing
such reports to the Trustee within 15 days after the time the Issuer would
be
required to file such information with the SEC if the Issuer were subject to
Section 13 or 15(d) of the Exchange Act, the financial information (including
a
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section) that would be required to be included in such reports,
subject to exceptions consistent with the presentation of financial information
in the Offering Circular, in each case, to the extent filed within the times
specified above.
Notwithstanding
anything herein to the contrary, the Issuer will not be deemed to have failed
to
comply with any of its agreements set forth under this Section 4.03 for purposes
of Section 6.01(3) until 120 days after the date any report is required to
be filed with the SEC (or posted on the Issuer's website or provided to the
Trustee) pursuant to this Section 4.03.
Section
4.04
|
Compliance Certificate
.
|
(a)
The
Issuer and each Guarantor (to the extent that such Guarantor is so required
under the Trust Indenture Act) shall deliver to the Trustee, within 90 days
after the end of each fiscal year ending after the Issue Date, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Issuer and
its
Restricted Subsidiaries during the preceding fiscal year has been made under
the
supervision of the signing Officer with a view to determining whether the Issuer
has kept, observed, performed and fulfilled its obligations
under
this Indenture, and further stating, as to such Officer signing such
certificate, that to the best of his or her knowledge the Issuer has kept,
observed, performed and fulfilled each and every condition and covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this
Indenture (or, if a Default shall have occurred, describing all such Defaults
of
which he or she may have knowledge and what action the Issuer is taking or
proposes to take with respect thereto).
(b)
When
any
Default has occurred and is continuing under this Indenture, or if the Trustee
or the holder of any other evidence of Indebtedness of the Issuer or any
Subsidiary gives any notice or takes any other action with respect to a claimed
Default, the Issuer shall promptly (which shall be no more than five (5)
Business Days) deliver to the Trustee by registered or certified mail or by
facsimile transmission an Officer’s Certificate specifying such event and what
action the Issuer proposes to take with respect thereto.
The
Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate negotiations
or
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section
4.06
|
Stay, Extension and Usury
Laws
.
|
The
Issuer and each of the Guarantors covenant (to the extent that they may lawfully
do so) that they shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Issuer and
each of the Guarantors (to the extent that they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law, and covenant that
they
shall not, by resort to any such law, hinder, delay or impede the execution
of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been
enacted.
Section
4.07
|
Limitation on Restricted
Payments
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(I)
declare
or pay any dividend or make any payment or distribution on account of the
Issuer’s, or any of its Restricted Subsidiaries’ Equity Interests, including any
dividend or distribution payable in connection with any merger or consolidation
other than:
(A)
dividends
or distributions by the Issuer payable solely in Equity Interests (other than
Disqualified Stock) of the Issuer; or
(B)
dividends
or distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its
pro
rata
share of
such dividend or distribution in accordance with its Equity Interests in such
class or series of securities;
(II)
purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests
of
the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation;
(III)
make
any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:
(A)
Indebtedness
permitted under clauses (8) and (9) of Section 4.09(b) hereof;
or
(B)
the
purchase, repurchase or other acquisition of Subordinated Indebtedness purchased
in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition; or
(IV)
make
any
Restricted Investment
(all
such
payments and other actions set forth in clauses (I) through (IV) above
(other than any exception thereto) being collectively referred to as
“
Restricted
Payments
”),
unless, at the time of such Restricted Payment:
(1)
no
Default shall have occurred and be continuing or would occur as a consequence
thereof;
(2)
immediately
after giving effect to such transaction on a
pro
forma
basis,
the Issuer could incur $1.00 of additional Indebtedness under Section 4.09(a)
hereof; and
(3)
such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the Issue
Date
(including Restricted Payments permitted by clauses (1), (2) (with respect
to the payment of dividends on Refunding Capital Stock pursuant to clause
(b) thereof only), (6)(c), (9) and (14) of Section 4.07(b) hereof
but excluding all other Restricted Payments permitted by Section 4.07(b) hereof,
is less than the sum of (without duplication):
(a)
50%
of
the Consolidated Net Income of the Issuer for the period (taken as one
accounting period) beginning May 4, 2007, to the end of the Issuer’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment, or, in the case such
Consolidated Net Income for such period is a deficit, minus 100% of such
deficit;
plus
(b)
100%
of
the aggregate net cash proceeds and the fair market value, as determined in
good
faith by the Issuer, of marketable securities or other property received by
the
Issuer since immediately after the Issue Date from the issue or sale
of:
(i)
(A) Equity
Interests of the Issuer, including Treasury Capital Stock, but excluding cash
proceeds and the fair market value, as determined in good faith by the Issuer,
of marketable securities or other property received from the sale
of:
(x)
Equity
Interests to members of management, directors or consultants of the Issuer,
any
direct or indirect parent company of the Issuer and the Issuer’s Subsidiaries
after the Issue Date to the extent such amounts have been applied to Restricted
Payments made in accordance with clause (4) of Section 4.07(b);
and
(y)
Designated
Preferred Stock; and
(B)
to
the
extent such net cash proceeds are actually contributed to the Issuer, Equity
Interests of the Issuer’s direct or indirect parent companies (excluding
contributions of the proceeds from the sale of Designated Preferred Stock of
such companies or contributions to the extent such amounts have been applied
to
Restricted Payments made in accordance with clause (4) of Section 4.07(b)
hereof); or
(ii)
debt
securities of the Issuer that have been converted into or exchanged for such
Equity Interests of the Issuer;
provided
,
however
,
that
this clause (b) shall not include the proceeds from (V) Refunding
Capital Stock, (W) Equity Interests of the Issuer or convertible debt
securities of the Issuer sold to a Restricted Subsidiary, as the case may be,
(X) Disqualified Stock or debt securities that have been converted into
Disqualified Stock or (Y) Excluded Contributions or (Z)
transactions
whose proceeds were used to incur Indebtedness, Disqualified Stock or Preferred
Stock pursuant to Section 4.09(b)(13)(a) hereof, solely to the extent of such
usage;
plus
(c)
100%
of
the aggregate amount of cash and the fair market value, as determined in good
faith by the Issuer, of marketable securities or other property contributed
to
the capital of the Issuer following the Issue Date (other than net cash proceeds
to the extent such net cash proceeds (i) have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause
(13)(a) of Section 4.09(b) hereof, (ii) are contributed by a
Restricted Subsidiary or (iii) constitute Excluded Contributions);
plus
(d)
to
the
extent not already included in Consolidated Net Income, 100% of the aggregate
amount received in cash and the fair market value, as determined in good faith
by the Issuer, of marketable securities or other property received by means
of:
(i)
the
sale
or other disposition (other than to the Issuer or a Restricted Subsidiary)
of
Restricted Investments made by the Issuer or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Issuer
or
its Restricted Subsidiaries and repayments of loans or advances, and releases
of
guarantees, which constitute Restricted Investments by the Issuer or its
Restricted Subsidiaries, in each case after the Issue Date; or
(ii)
the
sale
(other than to the Issuer or a Restricted Subsidiary) of the stock of an
Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other
than in each case to the extent the Investment in such Unrestricted Subsidiary
was made by the Issuer or a Restricted Subsidiary
pursuant
to clause (7) of Section 4.07(b) hereof or to the extent such Investment
constituted a Permitted Investment) or a dividend from an Unrestricted
Subsidiary after the Issue Date;
plus
(e)
in
the
case of the redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary after the Issue Date, the fair market value of the Investment in
such
Unrestricted Subsidiary, as determined by the Issuer in good faith (or if such
fair market value exceeds $75.0 million, in writing by an Independent
Financial Advisor), at the time of the redesignation of such Unrestricted
Subsidiary as a Restricted Subsidiary other than to the extent the Investment
in
such Unrestricted Subsidiary was made by the Issuer or a Restricted Subsidiary
pursuant to clause (7) of Section 4.07(b) or to the extent such Investment
constituted a Permitted Investment.
(b)
The
foregoing provisions of Section 4.07(a) shall not prohibit:
(1)
the
payment of any dividend within 60 days after the date of declaration thereof,
if
at the date of declaration such payment would have complied with the provisions
of this Indenture;
(2)
(a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(“
Treasury
Capital Stock
”)
or
Subordinated Indebtedness of the Issuer or any Equity Interests of any direct
or
indirect parent company of the Issuer, in exchange for, or out of the proceeds
of the substantially concurrent sale (other than to a Restricted Subsidiary)
of,
Equity Interests of the Issuer or any direct or indirect parent company of
the
Issuer to the extent contributed to the Issuer (in each case, other than any
Disqualified Stock) (“
Refunding
Capital Stock
”)
and
(b) if immediately prior to the retirement of Treasury Capital Stock, the
declaration and payment of dividends thereon was permitted under clause
(6) of this Section 4.07(b), the declaration and payment of dividends on
the Refunding Capital Stock (other than Refunding Capital Stock the proceeds
of
which were used to redeem, repurchase, retire or otherwise acquire any Equity
Interests of any direct or indirect parent company of the Issuer) in an
aggregate amount per year no greater than the aggregate amount of dividends
per
annum that were declarable and payable on such Treasury Capital Stock
immediately prior to such retirement;
(3)
the
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Issuer or a Guarantor made in exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer
or a Guarantor, as the case may be, which is incurred in compliance with Section
4.09 hereof so long as:
(a)
the
principal amount (or accreted value) of such new Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus any accrued
and
unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired for value, plus the amount of any reasonable
premium (including reasonable tender premiums), defeasance costs and any
reasonable fees and expenses incurred in connection with the issuance of such
new Indebtedness;
(b)
such
new
Indebtedness is subordinated to the Notes or the applicable Guarantee at least
to the same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired for value;
(c)
such
new
Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired; and
(d)
such
new
Indebtedness has a Weighted Average Life to Maturity equal to or greater than
the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired;
(4)
a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or
retirement for value of Equity Interests (other than Disqualified Stock) of
the
Issuer or any of its direct or indirect parent companies held by any future,
present or former employee, director or consultant of the Issuer, any of its
Subsidiaries or any of its direct or indirect parent companies pursuant to
any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement, including any Equity Interests rolled over by
management of the Issuer or any of its direct or indirect parent companies
in
connection with the Transactions;
provided
,
however
,
that
the aggregate Restricted Payments made under this clause (4) do not exceed
in any calendar year $12.5 million (which shall increase to $25.0 million
subsequent to the consummation of an underwritten public Equity Offering by
the
Issuer or any direct or indirect parent entity of the Issuer) (with unused
amounts in any calendar year being carried over to succeeding calendar years
subject to a maximum (without giving effect to the following proviso) of
$50.0 million in any calendar year (which shall increase to $100.0 million
subsequent to the consummation of an underwritten public Equity Offering by
the
Issuer or any direct or indirect parent corporation of the Issuer));
provided
further
that
such amount in any calendar year may be increased by an amount not to
exceed:
(a)
the
cash
proceeds from the sale of Equity Interests (other than Disqualified Stock)
of
the Issuer and, to the extent contributed to the Issuer, Equity Interests of
any
of the Issuer’s direct or indirect parent companies, in each case to members of
management, directors or consultants of the Issuer, any of its Subsidiaries
or
any of its direct or indirect parent companies that occurs after the Issue
Date,
to the extent the cash proceeds from the sale of such Equity Interests have
not
otherwise been applied to the payment of Restricted Payments by virtue of clause
(3) of Section 4.07(a);
plus
(b)
the
cash
proceeds of key man life insurance policies received by the Issuer or its
Restricted Subsidiaries after the Issue Date;
less
(c)
the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (a) and (b) of this clause (4);
and
provided
,
further
,
that
cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary
from members of management of the Issuer, any of the Issuer’s direct or indirect
parent companies or any of the Issuer’s Restricted Subsidiaries in connection
with a repurchase of Equity Interests of the Issuer or any of its direct or
indirect parent companies will not be deemed to constitute a Restricted Payment
for purposes of this Section 4.07 or any other provision of this
Indenture;
(5)
the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any
class or series of Preferred Stock of any Restricted Subsidiary issued in
accordance with Section 4.09 hereof to the extent such dividends are included
in
the definition of “Fixed Charges”;
(6)
(a) the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer
after the Issue Date;
(b)
the
declaration and payment of dividends to a direct or indirect parent company
of
the Issuer, the proceeds of which will be used to fund the payment of dividends
to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of such parent company issued after the Issue Date;
provided
that the
amount of dividends paid pursuant to this clause (b) shall not exceed the
aggregate amount of cash actually contributed to the Issuer from the sale of
such Designated Preferred Stock; or
(c)
the
declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon
pursuant to clause (2) of this Section 4.07(b);
provided
,
however
,
in the
case of each of (a), (b) and (c) of this clause (6), that for the most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date of issuance of such Designated
Preferred Stock or the declaration of such dividends on Refunding Capital Stock
that is Preferred Stock, after giving effect to such issuance or declaration
on
a
pro
forma
basis,
the Issuer and its Restricted Subsidiaries on a consolidated basis would have
had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;
(7)
Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (7) that
are at the time outstanding, without giving effect to the sale of an
Unrestricted Subsidiary to the extent the proceeds of such sale do not consist
of cash or marketable securities, not to exceed $50.0 million at the time of
such Investment (with the fair market value of each Investment being measured
at
the time made and without giving effect to subsequent changes in
value);
(8)
repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such
options or warrants;
(9)
the
declaration and payment of dividends on the Issuer’s common stock (or the
payment of dividends to any direct or indirect parent entity to fund a payment
of dividends on such entity’s common stock), following consummation of the first
public offering of the Issuer’s common stock or the common stock of any of its
direct or indirect parent companies after the Issue Date, of up to 6% per
annum of the net cash proceeds received by or contributed to the Issuer in
or
from any such public offering, other than public offerings with respect to
the
Issuer’s common stock registered on Form S-8 and other than any public sale
constituting an Excluded Contribution;
(10)
Restricted
Payments that are made with Excluded Contributions;
(11)
other
Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11) not to exceed $100.0
million at the time made;
(12)
distributions
or payments of Receivables Fees;
(13)
any
Restricted Payment made as part of the Transactions and the fees and expenses
related thereto or used to fund amounts owed to Affiliates (including dividends
to any direct or indirect parent of the Issuer to permit payment by such parent
of such amount), in each case to the extent permitted by Section 4.11
hereof;
(14)
the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness in accordance with provisions similar to those
described under Sections 4.10 and 4.14 hereof;
provided
that all
Notes tendered by Holders in connection with a Change of Control Offer or Asset
Sale Offer, as applicable, have been repurchased, redeemed or acquired for
value;
(15)
the
declaration and payment of dividends by the Issuer to, or the making of loans
to, any direct or indirect parent in amounts required for any direct or indirect
parent companies to pay, in each case without duplication,
(a)
franchise
and excise taxes and other fees, taxes and expenses required to maintain their
corporate existence;
(b)
foreign,
federal, state and local income taxes, to the extent such income taxes are
attributable to the income of the Issuer and its Restricted Subsidiaries and,
to
the extent of the amount actually received from its Unrestricted Subsidiaries,
in amounts required to pay such taxes to the extent attributable to the income
of such Unrestricted Subsidiaries;
provided
that in
each case the amount of such payments in any fiscal year does not exceed the
amount that the Issuer and its Restricted Subsidiaries would be required to
pay
in respect of foreign, federal, state and local taxes for such fiscal year
were
the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to
the extent described above) to pay such taxes separately from any such parent
entity;
(c)
customary
salary, bonus and other benefits payable to officers and employees of any direct
or indirect parent company of the Issuer to the extent such salaries, bonuses
and other benefits are attributable to the ownership or operation of the Issuer
and its Restricted Subsidiaries;
(d)
general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Issuer to the extent such costs and expenses are
attributable to the ownership or operation of the Issuer and its Restricted
Subsidiaries; and
(e)
fees
and
expenses other than to Affiliates of the Issuer related to any unsuccessful
equity or debt offering of such parent entity; and
(16)
the
redemption for cash of a portion of each Senior Subordinated Note then
outstanding equal to any "Mandatory Principal Redemption Amount" applicable
thereto, to the extent required under the Senior Subordinated Indenture. The
"Mandatory Principal Redemption Amount" means, as of the date of such
redemption, the excess, if any, of (a) the aggregate amount of accrued and
unpaid interest and all accrued and unpaid "original issue discount" (as defined
in Section 1273(a)(1) of the Code) with respect to the Senior Subordinated
Notes, over (b) an amount equal to the product of (i) the "issue price" (as
defined in Sections 1273(b) and 1274(a) of the Code) of the Senior Subordinated
Notes multiplied by (ii) the "yield to maturity" (as defined in the Treasury
Regulation Section 1.1272-1(b)(1)(i)) of the Senior Subordinated
Notes
;
provided
,
however
,
that at
the time of, and after giving effect to, any Restricted Payment permitted under
clause (11) of this Section 4.07(b), no Default shall have occurred and be
continuing or would occur as a consequence thereof.
The
Issuer shall not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the last sentence of the definition of
“Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary
as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and
its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined
as
set forth in the last sentence of the definition of “Investments.” Such
designation shall be permitted only if a Restricted Payment in such amount
would
be permitted at such time, whether pursuant to Section 4.07(a) hereof or under
clause (7), (10) or (11) of Section 4.07(b), or pursuant to the
definition of “Permitted Investments,” and if such Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
Notwithstanding
the foregoing provisions of this Section 4.07, the Issuer will not, and will
not
permit any of its Restricted Subsidiaries to, pay any cash dividend or make
any
cash distribution on or in respect of the Issuer’s Capital Stock or purchase for
cash or otherwise acquire for cash any Capital Stock of the Issuer or any direct
or indirect parent of the Issuer, for the purpose of paying any cash dividend
or
making any cash distribution to, or acquiring Capital Stock of any direct or
indirect parent of the Issuer for cash from, the Investors, or Guarantee any
Indebtedness of any Affiliate of the Issuer for the purpose of paying such
dividend, making such distribution or so acquiring such Capital Stock to or
from
the Investors, in each case by means of utilization of the cumulative Restricted
Payment credit provided by Section 4.07(a), or the exceptions provided by
clauses (1), (7) or (11) of Section 4.07(b) or clauses (8) or (13) of the
definition of “Permitted Investments”, unless at the time and after giving
effect to such payment, the Consolidated Leverage Ratio of the Issuer would
be
equal to or less than 6.00:1.00.
Section
4.08
|
Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries that
are not Guarantors to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any such Restricted Subsidiary to:
(1)
(A)
pay
dividends or make any other distributions to the Issuer or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or
(B)
pay
any
Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries;
(2)
make
loans or advances to the Issuer or any of its Restricted Subsidiaries;
or
(3)
sell,
lease or transfer any of its properties or assets to the Issuer or any of its
Restricted Subsidiaries.
(b)
The
restrictions in Section 4.08(a) hereof shall not apply to encumbrances or
restrictions existing under or by reason of:
(1)
contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant
to
the Senior Credit Facilities and the
related
documentation;
(2)
this
Indenture and the Notes, the Senior Subordinated Indenture and the Senior
Subordinated Notes;
(3)
purchase
money obligations for property acquired in the ordinary course of business
that
impose restrictions of the nature discussed in
clause
(3) of
Section 4.08(a) hereof on the property so acquired;
(4)
applicable
law or any applicable rule, regulation or order;
(5)
any
agreement or other instrument of a Person acquired by the Issuer or any
Restricted Subsidiary in existence at the time of such
acquisition
(but not created in connection therewith or in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the
properties
or
assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired;
(6)
contracts
for the sale of assets, including customary restrictions with respect to a
Subsidiary of the Issuer pursuant to an agreement that has
been
entered
into for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary;
(7)
Secured
Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof
and Section 4.12 hereof that limits the right of the
debtor
to
dispose of the assets securing such Indebtedness;
(8)
restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(9)
other
Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date
pursuant
Section 4.09 hereof;
(10)
customary
provisions in joint venture agreements and other agreements or arrangements
relating solely to such joint venture;
(11)
customary
provisions contained in leases or licenses of intellectual property and other
agreements, in each case, entered into in the ordinary
course
of
business;
(12)
any
encumbrances or restrictions of the type referred to in clauses (1), (2) and
(3)
of Section 4.08(a) hereof imposed by any amendments,
modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses
(1)
through (11) of this Section 4.08(b);
provided
that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings,
replacements
or refinancings are, in the good faith judgment of the Issuer, no more
restrictive with respect to such encumbrance and other restrictions taken as
a
whole than
those prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing; and
(13)
restrictions
created in connection with any Receivables Facility that, in the good faith
determination of the Issuer are necessary or
advisable
to
effect the transactions contemplated under such Receivables
Facility.
Section
4.09
|
Limitation on Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise (collectively,
“
incur
”
and
collectively, an “
incurrence
”),
with
respect to any Indebtedness (including Acquired Indebtedness), and the Issuer
shall not issue any shares of Disqualified Stock and shall not permit any
Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred
Stock;
provided
,
however
,
that
the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur
Indebtedness (including Acquired Indebtedness), issue shares of Disqualified
Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage Ratio
on
a consolidated basis for the Issuer and its Restricted Subsidiaries’ most
recently ended four fiscal quarters for which internal financial statements
are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock or Preferred Stock is issued would have
been at least 2.00 to 1.00, determined on a
pro
forma
basis
(including a
pro
forma
application
of the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or Preferred Stock had been issued, as
the
case may be, and the application of proceeds therefrom had occurred at the
beginning of such four-quarter period;
provided
,
further
,
that
Restricted Subsidiaries that are not Guarantors may not incur Indebtedness
or
Disqualified Stock or Preferred Stock if, after giving
pro
forma
effect
to
such incurrence or issuance (including a
pro
forma
application
of the net proceeds therefrom), more than an aggregate of $250.0 million of
Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries
that are not Guarantors would be outstanding pursuant to this Section 4.09(a)
and clauses (13)(b), (15) and (20) of Section 4.09(b) at such
time.
(b)
The
provisions of Section 4.09(a) hereof shall not apply to:
(1)
the
incurrence of Indebtedness under (x) Credit Facilities (other than the ABL
Facility) by the Issuer or any of its Restricted Subsidiaries and the issuance
and creation of letters of credit and bankers’ acceptances thereunder (with
letters of credit and bankers’ acceptances being deemed to have a principal
amount equal to the face amount thereof), up to an aggregate principal amount
of
$2,625.0 million outstanding at any one time and (y) the ABL Facility
by the Issuer or any of its Restricted Subsidiaries and the issuance and
creation of letters of credit and bankers’ acceptances thereunder (with letters
of credit and bankers’ acceptances being deemed to have a principal amount equal
to the face amount thereof), up to an aggregate principal amount equal to the
ABL Facility Cap;
(2)
the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes issued on the Issue Date (including any Guarantee hereof) and the Exchange
Notes and related guarantees of the Exchange Notes to be issued in exchange
for
the Notes and the Guarantees pursuant to the Registration Rights Agreement
(other than any Additional Notes and related guarantees);
(3)
the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Senior Subordinated Notes and related guarantees, as well as any exchange notes
and exchange
guarantees
to be issued in exchange for the Senior Subordinated Notes and related
guarantees pursuant a registration rights agreement;
(4)
Indebtedness
of the Issuer and its Restricted Subsidiaries in existence on the Issue Date
(other than Indebtedness described in clauses (1), (2) and (3), of this
Section 4.09(b));
(5)
Indebtedness
consisting of Capitalized Lease Obligations and Purchase Money Obligations
in a
principal amount not to exceed $250.0 million
(excluding the principal amount of any Capitalized Lease Obligations or Purchase
Money Obligations relating to the purchase, lease or improvement of the
Company’s distribution centers located in Fulton, Missouri, Indianola,
Mississippi and Ardmore, Oklahoma)
in the
aggregate at any one time outstanding together with all other Indebtedness
issued under this clause (5); so long as such Indebtedness exists at the
date of such purchase, lease or improvement, or is created within 270 days
thereafter;
(6)
Indebtedness
incurred by the Issuer or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation, or employee health claims, or other Indebtedness with respect
to
reimbursement-type obligations regarding workers’ compensation, or employee
health claims;
provided
,
however
,
that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;
(7)
Indebtedness
arising from agreements of the Issuer or its Restricted Subsidiaries providing
for indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any
business, assets or a Subsidiary, other than guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition;
provided
,
however
,
that
such Indebtedness is not reflected on the balance sheet of the Issuer or any
of
its Restricted Subsidiaries (contingent obligations referred to in a footnote
to
financial statements and not otherwise reflected on the balance sheet will
not
be deemed to be reflected on such balance sheet for purposes of this clause
(7));
(8)
Indebtedness
of the Issuer to a Restricted Subsidiary;
provided
that any
such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor
is
expressly subordinated in right of payment to the Notes;
provided
,
further
,
that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such Indebtedness (except to the Issuer
or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness not permitted by this clause (8);
(9)
Indebtedness
of a Restricted Subsidiary to the Issuer or another Restricted Subsidiary;
provided
that
if a
Guarantor issues such Indebtedness to a Restricted Subsidiary that is not a
Guarantor (other than to any Restricted Subsidiary engaged in the insurance
business in order to provide insurance to the Issuer and its Subsidiaries),
such
Indebtedness is expressly subordinated in right of payment to the Guarantee
of
the Notes of such Guarantor;
provided,
further
,
that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except
to
the Issuer or another Restricted Subsidiary) shall be deemed, in each case,
to
be an incurrence of such Indebtedness not permitted by this
clause (9);
(10)
shares
of
Preferred Stock of a Restricted Subsidiary issued to the Issuer or another
Restricted Subsidiary;
provided
that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such shares of Preferred Stock (except
to the Issuer or another of its Restricted Subsidiaries) shall be deemed
in each
case to be an issuance of such shares of Preferred Stock not permitted by
this
clause (10);
(11)
Hedging
Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any
Indebtedness permitted to be incurred pursuant to this Section 4.09, exchange
rate risk or commodity pricing risk;
(12)
obligations
in respect of performance, bid, appeal and surety bonds and completion
guarantees provided by the Issuer or any of its Restricted Subsidiaries in
the
ordinary course of business;
(13)
(a) Indebtedness
or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or
Preferred Stock of the Issuer or any Restricted Subsidiary equal to 100.0%
of
the net cash proceeds received by the Issuer since immediately after the Issue
Date from the issue or sale of Equity Interests of the Issuer or cash
contributed to the capital of the Issuer (in each case, other than Excluded
Contributions or proceeds of Disqualified Stock or sales of Equity Interests
to
the Issuer or any of its Subsidiaries) as determined in accordance with
clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the extent such
net cash proceeds or cash have not been applied pursuant to such clauses to
make
Restricted Payments or to make other Investments, payments or exchanges pursuant
to Section 4.07(b) hereof or to make Permitted Investments (other than Permitted
Investments specified in clauses (1) and (3) of the definition
thereof) and (b) Indebtedness or Disqualified Stock of the Issuer and
Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any
Restricted Subsidiary not otherwise permitted hereunder in an aggregate
principal amount or liquidation preference, which when aggregated with the
principal amount and liquidation preference of all other Indebtedness,
Disqualified Stock and Preferred Stock then outstanding and incurred pursuant
to
this clause (13)(b), does not at any one time outstanding
exceed $250.0 million;
provided
,
however
,
that on
a
pro
forma
basis,
together with any amounts incurred and outstanding by Restricted Subsidiaries
that are not Guarantors pursuant to the second proviso to Section 4.09(a) and
clauses (15) and (20) thereof, no more than $250.0 million of
Indebtedness, Disqualified Stock or Preferred Stock at any one time outstanding
and incurred pursuant to this clause (13)(b) shall be incurred by
Restricted Subsidiaries that are not Guarantors (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this
clause (13)(b) shall cease to be deemed incurred or outstanding for
purposes of this clause (13)(b) but shall be deemed incurred for the
purposes of Section 4.09(a) hereof from and after the first date on which the
Issuer or such Restricted Subsidiary could have incurred such Indebtedness,
Disqualified Stock or Preferred Stock under Section 4.09(a) hereof without
reliance on this clause (13)(b));
(14)
the
incurrence or issuance by the Issuer or any Restricted Subsidiary of
Indebtedness, Disqualified Stock or Preferred Stock which serves to refund
or
refinance any Indebtedness, Disqualified Stock or Preferred Stock of the Issuer
or any Restricted Subsidiary incurred as permitted under Section 4.09(a) hereof
and clauses (2), (3), (4), (5) and (13)(a) of this Section
4.09(b) above, this clause (14) and clause (15) of this Section
4.10(b) or any Indebtedness, Disqualified Stock or Preferred Stock of the Issuer
or any Restricted Subsidiary issued to so refund or refinance such Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary
including additional Indebtedness, Disqualified Stock or
Preferred
Stock incurred to pay premiums (including reasonable tender premiums),
defeasance costs and fees in connection therewith (the “
Refinancing
Indebtedness
”)
prior
to its respective maturity;
provided
,
however
,
that
such Refinancing Indebtedness:
(a)
has
a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is
incurred which is not less than the remaining Weighted Average Life to Maturity
of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced,
(b)
to
the
extent such Refinancing Indebtedness refinances (i) Indebtedness
subordinated or
pari
passu
to the
Notes or any Guarantee thereof, such Refinancing Indebtedness is subordinated
or
pari
passu
to the
Notes or the Guarantee at least to the same extent as the Indebtedness being
refinanced or refunded or (ii) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness must be Disqualified Stock or Preferred Stock,
respectively, and
(c)
shall
not
include Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of
the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified
Stock or Preferred Stock of the Issuer or a Guarantor;
and
provided
further
,
that
subclause (a) of this clause (14) will not apply to any refunding or
refinancing of any Indebtedness outstanding under a Credit
Facility;
(15)
Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Issuer or a Restricted
Subsidiary incurred to finance an acquisition of any Person or asset, or
(y) Persons that are acquired by the Issuer or any Restricted Subsidiary or
merged into the Issuer or a Restricted Subsidiary in accordance with the terms
of this Indenture;
provided
that
after giving effect to such acquisition or merger, either:
(a)
the
Issuer would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof, or
(b)
the
Fixed
Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries is greater
than immediately prior to such acquisition or merger;
provided
,
however
that on
a
pro
forma
basis,
together with amounts incurred and outstanding pursuant to the second proviso
to
Section 4.09(a) and clauses (13)(b) and (20) of this Section 4.09(b), no
more than $250.0 million of Indebtedness, Disqualified Stock or Preferred
Stock at any one time outstanding and incurred by Restricted Subsidiaries that
are not Guarantors pursuant to this clause (15) shall be incurred and
outstanding;
(16)
Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business;
provided
that
such Indebtedness is extinguished within two Business Days of its
incurrence;
(17)
Indebtedness
of the Issuer or any of its Restricted Subsidiaries supported by a letter of
credit issued pursuant to any Credit Facilities, in a principal amount not
in
excess of the stated amount of such letter of credit;
(18)
(a) any
guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other
Obligations of any Restricted Subsidiary, so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the
terms
of this Indenture, or (b) any guarantee by a Restricted Subsidiary of
Indebtedness of the Issuer permitted to be incurred under the terms of this
Indenture;
provided
that
such guarantee is incurred in accordance with Section 4.15
hereof;
(19)
Indebtedness
of Foreign Subsidiaries of the Issuer in an amount not to exceed at any one
time
outstanding and together with any other Indebtedness incurred under this clause
(19) 5.0% of the Total Assets of the Foreign Subsidiaries (it being
understood that any Indebtedness incurred pursuant to this clause
(19) shall cease to be deemed incurred or outstanding for purposes of this
clause (19) but shall be deemed incurred for the purposes of Section
4.09(a) hereof from and after the first date on which the Issuer or such
Restricted Subsidiaries could have incurred such Indebtedness under Section
4.09(a) hereof without reliance on this clause (19));
(20)
Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary incurred to
finance or assumed in connection with an acquisition in a principal amount
not
to exceed $100.0 million in the aggregate at any one time outstanding together
with all other Indebtedness, Disqualified Stock and/or Preferred Stock issued
under this clause (20) (it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred pursuant to this clause
(20) shall cease to be deemed incurred or outstanding for purposes of this
clause (20) but shall be deemed incurred for the purposes of Section
4.09(a) hereof from and after the first date on which such Restricted Subsidiary
could have incurred such Indebtedness, Disqualified Stock or Preferred Stock
under Section 4.09(a) hereof without reliance on this clause (20));
provided
,
however
,
that,
on a
pro
forma
basis,
together with amounts incurred and outstanding by Restricted Subsidiaries that
are not Guarantors pursuant to the second proviso to Section 4.09(a) and clauses
(13)(b) and (15) of this Section 4.09(b), no more than $250.0 million of
Indebtedness would be incurred and outstanding by Restricted Subsidiaries that
are not Guarantors;
(21)
Indebtedness
of the Issuer or any of its Restricted Subsidiaries consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations contained
in supply arrangements, in each case, incurred in the ordinary course of
business; and
(22)
Indebtedness
consisting of Indebtedness issued by the Issuer or any of its Restricted
Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance
the
purchase or redemption of Equity Interests of the Issuer or any direct or
indirect parent company of the Issuer to the extent described in clause (4)
of Section 4.07(b) hereof.
For
purposes of determining compliance with this Section 4.09:
(1)
in
the
event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or
any portion thereof) meets the criteria of more than one of the categories
of
permitted Indebtedness, Disqualified Stock or Preferred Stock described in
clauses (1) through (22) of this Section 4.09(b) or is entitled to be
incurred pursuant to Section 4.09(a) hereof, the Issuer, in its sole discretion,
shall classify or reclassify such item of Indebtedness, Disqualified Stock
or
Preferred Stock (or any portion thereof) and shall only be required to include
the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock
in one of the above clauses;
provided
that
all
Indebtedness outstanding under the Credit Facilities on the Issue Date shall
be
treated as incurred on the Issue Date under clause (1) of Section 4.09(b)
hereof; and
(2)
at
the
time of incurrence, the Issuer will be entitled to divide and classify an item
of Indebtedness in more than one of the types of Indebtedness described in
Section 4.09(a) and 4.09(b) hereof.
Accrual
of interest, the accretion of accreted value and the payment of interest in
the
form of additional Indebtedness, Disqualified Stock or Preferred Stock shall
not
be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred
Stock for purposes of this Section 4.09.
For
purposes of determining compliance with any U.S. dollar-denominated restriction
on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount
of Indebtedness denominated in a foreign currency shall be calculated based
on
the relevant currency exchange rate in effect on the date such Indebtedness
was
incurred, in the case of term debt, or first committed, in the case of revolving
credit debt;
provided
that if
such Indebtedness is incurred to refinance other Indebtedness denominated in
a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so
long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced.
The
principal amount of any Indebtedness incurred to refinance other Indebtedness,
if incurred in a different currency from the Indebtedness being refinanced,
shall be calculated based on the currency exchange rate applicable to the
currencies in which such respective Indebtedness is denominated that is in
effect on the date of such refinancing.
Notwithstanding
anything to the contrary, the Issuer shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) that is subordinated or junior in right of payment to any
Indebtedness of the Issuer or such Guarantor, as the case may be, unless such
Indebtedness is expressly subordinated in right of payment to the Notes or
such
Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness
is subordinated to other Indebtedness of the Issuer or such Guarantor, as the
case may be
;
provided
that
this sentence shall not apply to Indebtedness incurred under Section
4.09(b)(1).
For
purposes of this Indenture, Indebtedness that is unsecured is not deemed to
be
subordinated or junior to Secured Indebtedness merely because it is unsecured,
and Senior Indebtedness not deemed to be subordinated or junior to any other
Senior Indebtedness merely because it has a junior priority with respect to
the
same collateral.
Section
4.10
|
Asset
Sales
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to
consummate, directly or indirectly, an Asset Sale, unless:
(1)
the
Issuer or such Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Issuer) of the assets sold or otherwise disposed
of; and
(2)
except
in
the case of a Permitted Asset Swap, at least 75% of the consideration therefor
received by the Issuer or such Restricted Subsidiary, as the case may be, is
in
the form of cash or Cash Equivalents;
provided
that the
amount of:
(A)
any
liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most
recent balance sheet or in the footnotes thereto) of the Issuer or such
Restricted Subsidiary, other than liabilities that are by their terms
subordinated to the Notes, that are assumed by the transferee of any such assets
and for which the Issuer and all of its Restricted Subsidiaries have been
validly released by all creditors in writing,
(B)
any
securities received by the Issuer or such Restricted Subsidiary from such
transferee that are converted by the Issuer or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing
of such Asset Sale, and
(C)
any
Designated Non-cash Consideration received by the Issuer or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant
to
this clause (C) that is at that time outstanding, not to exceed 5.0% of
Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect
to
subsequent changes in value,
shall
be
deemed to be cash for purposes of this provision and for no other
purpose.
(b)
Within
360 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer
or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from
such
Asset Sale,
(1)
to
permanently reduce:
(A)
Obligations
under the Notes or any other Senior Indebtedness of the Issuer or any Guarantor
(other than Obligations owed to the Issuer or a Restricted Subsidiary) and,
in
the case of Obligations under revolving credit facilities or other similar
Indebtedness, to correspondingly permanently reduce commitments with respect
thereto;
provided
that
if
the Issuer or any Restricted Subsidiary shall so reduce Obligations under any
Senior Indebtedness that is not secured by a Lien, the Issuer or such Guarantor
will, equally and ratably, reduce Obligations under the Notes by, at its option,
(A) redeeming Notes, (B) making an offer (in accordance with the
procedures set forth below for an Asset Sale Offer) to all Holders to purchase
their Notes at 100% of the principal amount thereof,
plus
the
amount of accrued and unpaid interest and Special Interest, if any, on the
principal amount of Notes to be repurchased or (C) purchasing Notes through
open market purchases (to the extent such purchases are at a price equal to
or
higher than 100% of the principal amount thereof) in a manner that complies
with
this Indenture and applicable securities law; or
;
(B)
Indebtedness
of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness
owed
to the Issuer or another Restricted Subsidiary;
(2)
to
make
(a) an Investment in any one or more businesses,
provided
that
such Investment in any business is in the form of the acquisition of Capital
Stock and results in the Issuer or another of its Restricted Subsidiaries,
as
the case may be, owning an amount of the Capital Stock of such
business
such that it constitutes a Restricted Subsidiary, (b) capital expenditures
or (c) acquisitions of other assets, in each of (a), (b) and (c), used
or useful in a Similar Business; or
(3)
to
make
an Investment in (a) any one or more businesses,
provided
that
such Investment in any business is in the form of the acquisition of Capital
Stock and results in the Issuer or another of its Restricted Subsidiaries,
as
the case may be, owning an amount of the Capital Stock of such business such
that it constitutes a Restricted Subsidiary, (b) properties or
(c) acquisitions of other assets that, in each of (a), (b) and (c),
replace the businesses, properties and/or assets that are the subject of such
Asset Sale;
provided
that, in
the case of clauses (2) and (3) above, a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such
commitment so long as the Issuer, or such other Restricted Subsidiary enters
into such commitment with the good faith expectation that such Net Proceeds
will
be applied to satisfy such commitment within 180 days of such commitment (an
“
Acceptable
Commitment
”)
and,
in the event any Acceptable Commitment is later cancelled or terminated for
any
reason before the Net Proceeds are applied in connection therewith, the Issuer
or such Restricted Subsidiary enters into another Acceptable Commitment (a
“
Second
Commitment
”)
within
180 days of such cancellation or termination;
provided
,
further
,
that if
any Second Commitment is later cancelled or terminated for any reason before
such Net Proceeds are applied, then such Net Proceeds shall constitute Excess
Proceeds.
(c)
Any
Net
Proceeds from Asset Sales that are not invested or applied as provided and
within the time period set forth Section 4.10(b) shall be deemed to constitute
“
Excess
Proceeds
.”
When
the aggregate amount of Excess Proceeds exceeds $75.0 million, the Issuer
shall make an offer to all Holders of the Notes and, if required or permitted
by
the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness
(an “
Asset
Sale Offer
”),
to
purchase the maximum aggregate principal amount of the Notes and such Senior
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000
in
excess thereof that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any, to the date fixed
for
the closing of such offer, in accordance with the procedures set forth in this
Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess
Proceeds within ten Business Days after the date that Excess Proceeds exceed
$75.0 million by mailing the notice required pursuant to the terms of this
Indenture, with a copy to the Trustee.
To
the
extent that the aggregate amount of Notes and such Senior Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer
may
use any remaining Excess Proceeds for general corporate purposes, subject to
other covenants contained in this Indenture. If the aggregate principal amount
of Notes or other such Senior Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
such other Senior Indebtedness, as determined by the Issuer, to be purchased
on
a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount
of Excess Proceeds, shall be reset at zero. Additionally, the Issuer may, at
its
option, make an Asset Sale Offer using proceeds from any Asset Sale at any
time
after consummation of such Asset Sale;
provided
that
such Asset Sale Offer shall be in an aggregate amount of not less than
$75.0 million. Upon consummation of such Asset Sale Offer, any Net Proceeds
not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
(d)
Pending
the final application of any Net Proceeds pursuant to this Section 4.11, the
holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce
Indebtedness
outstanding
under a revolving credit facility or otherwise invest such Net Proceeds in
any
manner not prohibited by this Indenture.
(e)
The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
or regulations are applicable in connection with the repurchase of the Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer shall comply with the applicable securities laws and regulations
and
shall not be deemed to have breached its obligations described in this Indenture
by virtue thereof.
Section
4.11
|
Transactions
with Affiliates
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its
properties or assets to, or purchase any property or assets from, or enter
into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Issuer
(each of the foregoing, an “
Affiliate
Transaction
”)
involving aggregate payments or consideration in excess of $15.0 million,
unless:
(1)
such
Affiliate Transaction is on terms that are not materially less favorable to
the
Issuer or its relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Issuer or such Restricted Subsidiary
with an unrelated Person on an arm’s-length basis; and
(2)
the
Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $25.0 million, a resolution adopted by the
majority of the board of directors of the Issuer approving such Affiliate
Transaction and set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with clause (1) of this Section
4.11(a).
(b)
The
provisions of Section 4.11(a) hereof shall not apply to the
following:
(1)
transactions
between or among the Issuer or any of its Restricted Subsidiaries;
(2)
Restricted
Payments permitted by Section 4.07 hereof and the definition of “Permitted
Investments”;
(3)
the
payment of management, consulting, monitoring and advisory fees and related
expenses to the Investors pursuant to the Sponsor
Management
Agreement (plus any unpaid management, consulting, monitoring and advisory
fees
and related expenses within such amount accrued in any prior
year)
and the
termination fees pursuant to the Sponsor Management Agreement, in each case
as
in effect on the Issue Date, or any amendments thereto (so
long
as any
such amendment is not disadvantageous in the good faith judgment of the board
of
directors of the Issuer to the Holders when taken as a whole
compared
to
the Sponsor Management Agreement in effect on the Issue Date);
(4)
the
payment of reasonable and customary fees paid to, and indemnities provided
for
the benefit of, officers, directors, employees or
consultants
of Issuer, any of its direct or indirect parent companies or any of its
Restricted Subsidiaries;
(5)
transactions
in which the Issuer or any of its Restricted Subsidiaries, as the case may
be,
delivers to the Trustee a letter from an
Independent
Financial Advisor stating that such transaction is fair to the Issuer or
such
Restricted Subsidiary from a financial point of view or stating that the
terms
are not
materially less favorable to the Issuer or its relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction
by
the Issuer
or such Restricted Subsidiary with an unrelated Person on an arm’s-length
basis;
(6)
any
agreement as in effect as of the Issue Date, or any amendment thereto (so long
as any such amendment is not disadvantageous to the
Holders
when
taken as a whole as compared to the applicable agreement as in effect on the
Issue Date in the reasonable determination of the Issuer);
(7)
the
existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders
agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar
agreements
which it may enter into thereafter;
provided
,
however
,
that
the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of
obligations
under any future amendment to any such existing agreement or under any similar
agreement entered into after the Issue Date shall only be permitted
by
this
clause (7) to the extent that the terms of any such amendment or new agreement
are not otherwise disadvantageous to the Holders when taken as a
whole
in the
reasonable determination of the Issuer;
(8)
the
Transactions and the payment of all fees and expenses related to the
Transactions, in each case as disclosed in the Offering Circular;
(9)
transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business
and
otherwise
in compliance with the terms of this Indenture which are fair to the Issuer
and
its Restricted Subsidiaries, in the reasonable determination of the
board
of
directors of the Issuer or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time
from
an
unaffiliated party;
(10)
the
issuance of Equity Interests (other than Disqualified Stock) of the Issuer
to
any Permitted Holder or to any director, officer, employee
or
consultant;
(11)
sales
of
accounts receivable, or participations therein, in connection with the ABL
Facility and any Receivables Facility;
(12)
payments
by the Issuer or any of its Restricted Subsidiaries to any of the Investors
made
for any financial advisory, financing, underwriting
or
placement
services or in respect of other investment banking activities, including,
without limitation, in connection with acquisitions or divestitures, which
payments
are
approved by a majority of the board of directors of the Issuer in good
faith;
(13)
payments
or loans (or cancellation of loans) to employees or consultants of the Issuer,
any of its direct or indirect parent companies or any
of
its
Restricted Subsidiaries and employment agreements, stock option plans and other
similar arrangements with such employees or consultants which, in each
case,
are
approved by the Issuer in good faith;
(14)
investments
by the Investors in securities of the Issuer or any of its Restricted
Subsidiaries so long as (i) the investment is being offered
generally
to
other investors on the same or more favorable terms and (ii) the investment
constitutes less than 5.0% of the proposed or outstanding issue amount
of
such class
of securities;
(15)
payments
to or from, and transactions with, any joint ventures in the ordinary course
of
business; and
(16)
payments
by the Issuer (and any direct or indirect parent thereof) and its Subsidiaries
pursuant to tax sharing agreements among the Issuer
(and
any such
parent) and its Subsidiaries on customary terms to the extent attributable
to
the ownership or operation of the Issuer and its Subsidiaries;
provided
that
in each
case the amount of such payments in any fiscal year does not exceed the amount
that the Issuer, its Restricted Subsidiaries and its Unrestricted
Subsidiaries
(to the extent of amounts received from Unrestricted Subsidiaries) would be
required to pay in respect of foreign, federal, state and local taxes for
such
fiscal
year were the Issuer and its Restricted Subsidiaries (to the extent described
above) to pay such taxes separately from any such parent entity.
The
Issuer shall not, and shall not permit any Guarantor to, directly or indirectly,
create, incur, assume or suffer to exist any Lien (except Permitted Liens)
that
secures obligations under any Indebtedness or any related Guarantee, on any
asset or property of the Issuer or any Guarantor now owned or hereafter
acquired, or any income or profits therefrom, or assign or convey any right
to
receive income therefrom, unless:
(1)
in
the
case of Liens securing Subordinated Indebtedness, the Notes and related
Guarantees are secured by a Lien on such property, assets or
proceeds
that
is senior in priority to such Liens; or
(2)
in
all
other cases, the Notes or the Guarantees are equally and ratably secured or
are
secured by a Lien on such property, assets or proceeds
that
is
senior in priority to such Liens;
except
that the foregoing shall not apply to (a) Liens securing Indebtedness
permitted to be incurred under Credit Facilities, including any letter of credit
relating thereto, that was permitted by the terms of this Indenture to be
incurred pursuant to clause (1) of Section 4.09(b) hereof and
(b) Liens incurred to secure Obligations in respect of any Indebtedness
permitted to be incurred pursuant to Section 4.09 hereof;
provided
that,
with respect to Liens securing Obligations permitted under this
subclause (b), at the time of incurrence and after giving
pro forma
effect
thereto, the Consolidated Secured Debt Ratio would be no greater than 3.25
to 1.0. Any Lien which is granted to secure the Notes under this Section
4.12 shall be discharged at the same time as the discharge of the Lien (other
than through the exercise of remedies with respect thereto) that gave rise
to
the obligation to so secure the Notes.
Section
4.13
|
Corporate Existence
.
|
Subject
to Article 5 hereof, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Issuer or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Issuer and its
Restricted
Subsidiaries;
provided
that the
Issuer shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Issuer in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer
and
its Restricted Subsidiaries, taken as a whole.
Section
4.14
|
Offer to Repurchase upon Change of
Control
|
(a)
If
a
Change of Control occurs, unless the Issuer has previously or concurrently
mailed a redemption notice with respect to all the outstanding Notes as
described under Section 3.07 hereof, the Issuer shall make an offer to purchase
all of the Notes pursuant to the offer described below (the “
Change
of Control Offer
”)
at a
price in cash (the “
Change
of Control Payment
”)
equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, to the date of purchase, subject to
the
right of Holders of the Notes of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date. Within 30 days following
any
Change of Control, the Issuer shall send notice of such Change of Control Offer
by first-class mail, with a copy to the Trustee, to each Holder of Notes to
the
address of such Holder appearing in the security register with a copy to the
Trustee or otherwise in accordance with the procedures of DTC, with the
following information:
(1)
that
a
Change of Control Offer is being made pursuant to this Section 4.14 and that
all
Notes properly tendered pursuant to such Change of
Control
Offer
will be accepted for payment by the Issuer;
(2)
the
purchase price and the purchase date, which will be no earlier than 30 days
nor
later than 60 days from the date such notice is mailed
(the
“
Change
of Control Payment Date
”);
(3)
that
any
Note not properly tendered will remain outstanding and continue to accrue
interest;
(4)
that
unless the Issuer defaults in the payment of the Change of Control Payment,
all
Notes accepted for payment pursuant to the Change of
Control
Offer
will cease to accrue interest on the Change of Control Payment
Date;
(5)
that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes, with the
form
entitled
“Option of Holder to Elect Purchase” on the reverse of such Notes completed, to
the paying agent specified in the notice at the address specified
in
the notice
prior to the close of business on the third Business Day preceding the Change
of
Control Payment Date;
(6)
that
Holders shall be entitled to withdraw their tendered Notes and their election
to
require the Issuer to purchase such Notes,
provided
that
the
paying
agent receives, not later than the close of business on the 30th day following
the date of the Change of Control notice, a facsimile transmission or
letter
setting forth the name of the Holder of the Notes, the principal amount of
Notes
tendered for purchase, and a statement that such Holder is withdrawing
its
tendered
Notes and its election to have such Notes purchased;
(7)
that
if
the Issuer is redeeming less than all of the Notes, the Holders of the remaining
Notes will be issued new Notes and such new Notes
will
be equal
in principal amount
to
the
unpurchased portion of the Notes surrendered. The unpurchased portion of the
Notes must be equal to $2,000 or an
integral
multiple of $1,000 in excess thereof; and
(8)
the
other
instructions, as determined by the Issuer, consistent with this Section 4.14,
that a Holder must follow.
The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to
have been given, whether or not the Holder receives such notice. If (a) the
notice is mailed in a manner herein provided and (b) any Holder fails to receive
such notice or a Holder receives such notice but it is defective, such Holder’s
failure to receive such notice or such defect shall not affect the validity
of
the proceedings for the purchase of the Notes as to all other Holders that
properly received such notice without defect. The Issuer shall comply with
the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws
and regulations thereunder to the extent such laws or regulations are applicable
in connection with the repurchase of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Issuer shall comply with
the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Indenture by virtue thereof.
(b)
On
the
Change of Control Payment Date, the Issuer shall, to the extent permitted by
law,
(1)
accept
for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;
(2)
deposit
with the Paying Agent an amount equal to the aggregate Change of Control Payment
in respect of all Notes or portions thereof so
tendered;
and
(3)
deliver,
or cause to be delivered, to the Trustee for cancellation the Notes so accepted
together with an Officer’s Certificate to the Trustee
stating
that
such Notes or portions thereof have been tendered to and purchased by the
Issuer.
(c)
The
Paying Agent will promptly mail to each Holder the Change of Control Payment
for
such Notes, and the Trustee
will
promptly
authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered,
if any;
provided
that
each such new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof.
(d)
The
Issuer shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth
in this Section 4.14 applicable to a Change of Control Offer made by the Issuer
and purchases all Notes validly tendered and not withdrawn under such Change
of
Control Offer. Notwithstanding anything to the contrary herein, a Change of
Control Offer may be made in advance of a Change of Control, conditional upon
such Change of Control, if a definitive agreement is in place for the Change
of
Control at the time of making of the Change of Control Offer.
(e)
Other
than as specifically provided in this Section 4.14, any purchase pursuant to
this Section 4.14 shall be made pursuant to the provisions of Sections 3.02,
3.05 and 3.06 hereof.
Section
4.15
|
Limitation
on
Guarantees of Indebtedness by Restricted
Subsidiaries
.
|
The
Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted
Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned
Subsidiaries guarantee other capital markets debt securities of the Issuer
or
any Guarantor), other than a Guarantor, a Foreign Subsidiary or a Receivables
Subsidiary, to guarantee the payment of any Indebtedness of the Issuer or any
other Guarantor unless:
(1)
such
Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as
Exhibit
D
hereto,
providing for a Guarantee by such Restricted Subsidiary, except that with
respect to a guarantee of Indebtedness of the Issuer or any
Guarantor:
(a)
if
the
Notes or such Guarantor’s Guarantee are subordinated in right of payment to such
Indebtedness, the Guarantee under the supplemental indenture shall be
subordinated to such Restricted Subsidiary’s guarantee with respect to such
Indebtedness substantially to the same extent as the Notes are subordinated
to
such Indebtedness; and
(b)
if
such
Indebtedness is by its express terms subordinated in right of payment to the
Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted
Subsidiary with respect to such Indebtedness shall be subordinated in right
of
payment to such Guarantee substantially to the same extent as such Indebtedness
is subordinated to the Notes; and
(2)
such
Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Issuer or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee;
provided
that
this Section 4.15 shall not be applicable to (i) any guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not incurred in connection with, or in contemplation of,
such
Person becoming a Restricted Subsidiary and (ii) guarantees of the
Receivables Facility by any Receivables Subsidiary.
ARTICLE
5
SUCCESSORS
Section
5.01
|
Merger, Consolidation or Sale of All or Substantially All
Assets
.
|
(a)
The
Issuer
shall
not
consolidate or merge with or into or wind up into (whether or not the Issuer
is
the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets,
in
one or more related transactions, to any Person unless:
(1)
either:
(x) the Issuer is the surviving corporation; or (y) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation organized or existing under the laws of
the
jurisdiction of organization of the Issuer or the laws of
the
United States, any state thereof, the District of Columbia, or any territory
thereof (such Person, as the case may be, being herein called the “
Successor
Company
”);
(2)
the
Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under the Notes and this Indenture pursuant to
supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(3)
immediately
after such transaction, no Default exists;
(4)
immediately
after giving
pro
forma
effect
to such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable four-quarter
period,
(A)
the
Successor Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) hereof, or
(B)
the
Fixed
Charge Coverage Ratio for the Successor Company, the Issuer and its Restricted
Subsidiaries would be greater than such ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such transaction;
(5)
each
Guarantor, unless it is the other party to the transactions described above,
in
which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental
indenture confirmed that its Guarantee shall apply to such Person’s obligations
under this Indenture, the Notes and the Registration Rights Agreement;
and
(6)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures, if any, comply with this Indenture.
(b)
The
Successor Company shall succeed to, and be substituted for the Issuer, as the
case may be, under this Indenture, the Guarantees and the Notes, as applicable.
Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1)
any
Restricted Subsidiary may consolidate with or merge into or transfer all or
part
of its properties and assets to the Issuer, and
(2)
the
Issuer may merge with an Affiliate of the Issuer, as the case may be, solely
for
the purpose of reincorporating the Issuer in a State of the United States or
any
state thereof, the District of Columbia or any territory thereof so long as
the
amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not
increased thereby.
(c)
Subject
to certain limitations described in this Indenture governing release of a
Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor
shall, and the Issuer shall not permit any Guarantor to, consolidate or merge
with or into or wind up into (whether or not the Issuer or Guarantor is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or
more
related transactions, to any Person unless:
(1)
(A) such
Guarantor is the surviving corporation or the Person formed by or surviving
any
such consolidation or merger (if other than such Guarantor) or to which such
sale,
assignment,
transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership, limited partnership, limited liability corporation
or
trust organized or existing under the laws of the jurisdiction of organization
of such Guarantor, as the case may be, or the laws of the United States,
any
state thereof, the District of Columbia, or any territory thereof (such
Guarantor or such Person, as the case may be, being herein called the
“
Successor
Person
”);
(B)
the
Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s related
Guarantee pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(C)
immediately
after such transaction, no Default exists; and
(D)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures, if any, comply with this Indenture;
or
(2)
the
transaction is made in compliance with Section 4.10 hereof.
(d)
Subject
to certain limitations described in this Indenture, the Successor Person shall
succeed to, and be substituted for, such Guarantor under this Indenture and
such
Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may
(i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer
solely for the purpose of reincorporating the Guarantor in the United States,
any state thereof, the District of Columbia or any territory thereof or (iii)
convert into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor.
(e)
Notwithstanding
anything to the contrary, the mergers contemplated by the Transaction Agreement
shall be permitted without compliance with this Section 5.01.
Section
5.02
|
Successor
Corporation Substituted
.
|
Upon
any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or
other disposition of all or substantially all of the assets of the Issuer in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Issuer is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the Issuer shall refer instead to
the
successor corporation and not to the Issuer), and may exercise every right
and
power of the Issuer under this Indenture with the same effect as if such
successor Person had been named as the Issuer herein;
provided
that the
predecessor Issuer shall not be relieved from the obligation to pay the
principal of and interest and Special Interest, if any, on the Notes except
in
the case of a sale, assignment, transfer, conveyance or other disposition of
all
of the Issuer’s assets that meets the requirements of Section 5.01
hereof.
ARTICLE
6
DEFAULTS
AND REMEDIES
Section
6.01
|
Events of Default
.
|
(a)
An
“
Event
of Default
”
wherever used herein, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be
effected by operation of law or pursuant to any judgment, decree or order of
any
court or any order, rule or regulation of any administrative or governmental
body):
(1)
default
in payment when due and payable, upon redemption, acceleration or otherwise,
of
principal of, or premium, if any, on the Notes;
(2)
default
for 30 days or more in the payment when due of interest or Special Interest
on
or with respect to the Notes;
(3)
failure
by the Issuer or any Guarantor for 60 days after receipt of written notice
given
by the Trustee or the Holders of not less 30% in principal amount of the Notes
then outstanding under this Indenture to comply with any of its obligations,
covenants or agreements (other than a default referred to in clauses (1)
and (2) above) contained in this Indenture or the Notes;
(4)
default
under any mortgage, indenture or instrument under which there is issued or
by
which there is secured or evidenced any Indebtedness for money borrowed by
the
Issuer or any of its Restricted Subsidiaries or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries, other than
Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists or is created after the issuance of the
Notes, if both:
(a)
such
default either results from the failure to pay any principal of such
Indebtedness at its stated final maturity (after giving effect to any applicable
grace periods) or relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated final maturity and results
in
the holder or holders of such Indebtedness causing such Indebtedness to become
due prior to its stated maturity; and
(b)
the
principal amount of such Indebtedness, together with the principal amount of
any
other such Indebtedness in default for failure to pay principal at stated final
maturity (after giving effect to any applicable grace periods), or the maturity
of which has been so accelerated, aggregate $50.0 million or more at any one
time outstanding;
(5)
failure
by the Issuer or any Significant Subsidiary (or group of Subsidiaries that
together would constitute a Significant Subsidiary) to pay final judgments
aggregating in excess of $50.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days after such
judgment becomes final, and in the event such judgment is covered by insurance,
an enforcement proceeding has been commenced by any creditor upon such judgment
or decree which is not promptly stayed;
(6)
the
Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary
or
any group of Restricted Subsidiaries that, taken together, would
constitute
a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy
Law:
(i)
commences
proceedings to be adjudicated bankrupt or insolvent;
(ii)
consents
to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief
under applicable Bankruptcy law;
(iii)
consents
to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
or
other similar official of it or for all or substantially all of its
property;
(iv)
makes
a
general assignment for the benefit of its creditors; or
(v)
generally
is not paying its debts as they become due;
(7)
a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i)
is
for relief
against the Issuer or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, in a proceeding in which the Issuer or
any
such Restricted Subsidiaries
,
that is
a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, is to be adjudicated
bankrupt or insolvent;
(ii)
appoints
a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or for all or substantially all of the
property of the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary; or
(iii)
orders
the liquidation of the Issuer or any of its Restricted Subsidiaries that is
a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary;
and
the
order or decree remains unstayed and in effect for 60 consecutive days;
or
(8)
the
Guarantee of any Significant Subsidiary
(or
group
of Subsidiaries that together would constitute a Significant
Subsidiary)
shall
for any reason cease to be in full force and effect or be declared null and
void
or any responsible officer of any Guarantor that is a Significant Subsidiary,
as
the case may be, denies that it has any further liability under its Guarantee
or
gives notice to such effect, other than by reason of the termination of this
Indenture or the release of any such Guarantee in accordance with this
Indenture; or
(b)
In
the
event of any Event of Default specified in clause (4) of Section 6.01(a) hereof,
such Event of Default and all consequences thereof (excluding any resulting
payment default,
other
than as a result of acceleration of the Notes) shall be annulled, waived
and
rescinded, automatically and without any action by the Trustee or the Holders,
if within 20 days after such Event of Default arose:
(1)
the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or
(2)
the
holders thereof have rescinded or waived the acceleration, notice or action
(as
the case may be) giving rise to such Event of Default; or
(3)
the
default that is the basis for such Event of Default has been cured.
Section
6.02
|
Acceleration
.
|
(a)
If
any
Event of Default (other than an Event of Default specified in clause (6) or
(7)
of Section 6.01(a) hereof) occurs and is continuing under this Indenture,
the Trustee or the Holders of at least 30% in principal amount of the then
outstanding Notes under this Indenture may declare the principal, premium,
if
any, interest and any other monetary obligations on all the then outstanding
Notes to be due and payable immediately. Upon the effectiveness of such
declaration, such principal and interest shall be due and payable immediately.
The Trustee shall have no obligation to accelerate the Notes if and so long
as a
committee of its Responsible Officers in good faith determines acceleration
is
not in the best interest of the Holders of the Notes.
(b)
Notwithstanding
the foregoing, in the case of an Event of Default arising under clause (6)
or
(7) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable
immediately without further action or notice.
(c)
The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, Special Interest, if any, or premium
that has become due solely because of the acceleration) have been cured or
waived.
Section
6.03
|
Other Remedies
.
|
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest on
the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing
upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to
the
extent permitted by law.
Section
6.04
|
Waiver of Past Defaults
.
|
Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of
all
of the Notes waive any existing Default and its consequences hereunder, except
a
continuing Default in the payment of the principal of, premium, if any, Special
Interest, if any, or interest on, any Note held by a non-consenting Holder
(including in
connection
with an Asset Sale Offer or a Change of Control Offer);
provided
,
subject
to Section 6.02 hereof, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been cured for
every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or
other Default or impair any right consequent thereon.
Section
6.05
|
Control by Majority
.
|
Holders
of a majority in principal amount of the then total outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
The
Trustee, however, may refuse to follow any direction that conflicts with law
or
this Indenture or that the Trustee determines is unduly prejudicial to the
rights of any other Holder of a Note or that would involve the Trustee in
personal liability.
Section
6.06
|
Limitation on Suits
.
|
Subject
to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect
to this Indenture or the Notes:
(1)
such
Holder has previously given the Trustee notice that an Event of Default is
continuing;
(2)
Holders
of at least 30% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;
(3)
Holders
of the Notes have offered the Trustee reasonable security or indemnity against
any loss, liability or expense;
(4)
the
Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and
(5)
Holders
of a majority in principal amount of the total outstanding Notes have not given
the Trustee a direction inconsistent with such request within such 60-day
period.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section
6.07
|
Rights of Holders of Notes to Receive
Payment
.
|
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Special Interest, if any,
and
interest on the Note, on or after the respective due dates expressed in the
Note
(including in connection with an Asset Sale Offer or a Change of Control Offer),
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such
Holder.
Section
6.08
|
Collection Suit by Trustee
.
|
If
an
Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as
trustee of an express
trust
against the Issuer for the whole amount of principal of, premium, if any,
and
Special Interest, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, its agents and counsel.
Section
6.09
|
Restoration of Rights and
Remedies
.
|
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceedings, the Issuer, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
Section
6.10
|
Rights and Remedies
Cumulative
.
|
Except
as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
6.11
|
Delay or Omission Not
Waiver
.
|
No
delay
or omission of the Trustee or of any Holder of any Note to exercise any right
or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section
6.12
|
Trustee May File Proofs of
Claim
.
|
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Issuer (or any other
obligor upon the Notes including the Guarantors), its creditors or its property
and shall be entitled and empowered to participate as a member in any official
committee of creditors appointed in such matter and to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall
be
paid out of, any and all
distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any
plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on
behalf of any Holder any plan of reorganization, arrangement, adjustment
or
composition affecting the Notes or the rights of any Holder, or to authorize
the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section
6.13
|
Priorities
.
|
If
the
Trustee collects any money or property pursuant to this Article 6, it shall
pay
out the money or property in the following order:
(i)
to
the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of
collection;
(ii)
to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and Special Interest, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and Special Interest, if any, and interest,
respectively; and
(iii)
to
the
Issuer or to such party as a court of competent jurisdiction shall direct
including a Guarantor, if applicable.
The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.13.
Section
6.14
|
Undertaking
for Costs
.
|
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith
of
the claims or defenses made by the party litigant. This Section 6.14 does not
apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE
7
TRUSTEE
Section
7.01
|
Duties of Trustee
.
|
(a)
If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own
affairs.
(b)
Except
during the continuance of an Event of Default:
(i)
the
duties of the Trustee shall be determined solely by the express provisions
of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii)
in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates
or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c)
The
Trustee may not be relieved from liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(i)
this
paragraph does not limit the effect of paragraph (b) of this Section
7.01;
(ii)
the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved in a court of competent jurisdiction
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii)
the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.05 hereof.
(d)
Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this
Section 7.01.
(e)
The
Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture at the request or direction of any of the Holders of the
Notes unless the Holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense.
(f)
The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Issuer. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by
law.
Section
7.02
|
Rights of Trustee
.
|
(a)
The
Trustee may conclusively rely upon any document believed by it to be genuine
and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in
its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation.
(b)
Before
the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate or Opinion of Counsel. The Trustee
may
consult with counsel of its selection and the written advice of such counsel
or
any Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c)
The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent or attorney appointed with due
care.
(d)
The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e)
Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer
of the Issuer.
(f)
None
of
the provisions of this Indenture shall require the Trustee to expend or risk
its
own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(g)
The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture.
(h)
In
no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of
the
likelihood of such loss or damage and regardless of the form of
action.
(i)
The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
(j)
In
the
event the Issuer is required to pay Special Interest, the Issuer will provide
written notice to the Trustee of the Issuer’s obligation to pay Special Interest
no later than 15 days prior to the next Interest Payment Date, which notice
shall set forth the amount of the Special Interest to be paid by the Issuer.
The
Trustee shall not at any time be under any duty or responsibility to any Holders
to determine whether the Special Interest is payable and the amount
thereof.
Section
7.03
|
Individual Rights of
Trustee
.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is
also subject to Sections 7.10 and 7.11 hereof.
Section
7.04
|
Trustee’s Disclaimer
.
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer’s use of the proceeds from the Notes or any money paid to the
Issuer or upon the Issuer’s direction under any provision of this Indenture, it
shall not be responsible for the use or application of any money received by
any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05
|
Notice of Defaults
.
|
If
a
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of Notes a notice of the Default within 90 days after
it
occurs. Except in the case of a Default relating to the payment of principal,
premium, if any, or interest on any Note, the Trustee may withhold from the
Holders notice of any continuing Default if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in
the interests of the Holders of the Notes. The Trustee shall not be deemed
to
know of any Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is such a Default
is received by the Trustee at the Corporate Trust Office of the
Trustee.
Section
7.06
|
Reports by Trustee to Holders of the
Notes
.
|
Within
60
days after each May 15, beginning with the May 15 following the date
of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with Trust Indenture Act Section 313(a) (but if no event
described in Trust Indenture Act Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee
shall also transmit by mail all reports as required by Trust Indenture Act
Section 313(c).
A
copy of
each report at the time of its mailing to the Holders of Notes shall be mailed
to the Issuer and filed with the SEC and each stock exchange on which the Notes
are listed in accordance with Trust Indenture Act Section 313(d). The Issuer
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section
7.07
|
Compensation and Indemnity
.
|
The
Issuer and the Guarantors, jointly and severally, shall pay to the Trustee
from
time to time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Issuer and the Guarantors, jointly and severally, shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.
The
Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee
for, and hold the Trustee harmless against, any and all loss, damage, claims,
liability or expense (including attorneys’ fees) incurred by it in connection
with the acceptance or administration of this trust and the performance of
its
duties hereunder (including the costs and expenses of enforcing this Indenture
against
the
Issuer or any of the Guarantors (including this Section 7.07) or defending
itself against any claim whether asserted by any Holder, the Issuer or any
Guarantor, or liability in connective with the acceptance, exercise or
performance of any of its powers or duties hereunder). The Trustee shall
notify
the Issuer promptly of any claim for which it may seek indemnity. Failure
by the
Trustee to so notify the Issuer shall not relieve the Issuer of its obligations
hereunder. The Issuer shall defend the claim and the Trustee may have separate
counsel and the Issuer shall pay the fees and expenses of such counsel. The
Issuer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee’s own willful misconduct,
negligence or bad faith.
The
obligations of the Issuer under this Section 7.07 shall survive the satisfaction
and discharge of this Indenture or the earlier resignation or removal of the
Trustee.
Notwithstanding
anything contrary in Section 4.12 hereto, to secure the payment obligations
of
the Issuer and the Guarantors in this Section 7.07, the Trustee shall have
a
Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture
or the earlier resignation or removal of the Trustee.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(a)(6) or (7) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel)
are
intended to constitute expenses of administration under any Bankruptcy
Law.
The
Trustee shall comply with the provisions of Trust Indenture Act Section
313(b)(2) to the extent applicable.
Section
7.08
|
Replacement of Trustee
.
|
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08. The Trustee may resign in writing
at any time and be discharged from the trust hereby created by so notifying
the
Issuer. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuer in
writing. The Issuer may remove the Trustee if:
(a)
the
Trustee fails to comply with Section 7.10 hereof;
(b)
the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(c)
a
custodian or public officer takes charge of the Trustee or its property;
or
(d)
the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Issuer shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Issuer.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee (at the Issuer’s expense), the
Issuer or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
the
Trustee, after written request by any Holder who has been a Holder for at least
six months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Issuer. Thereupon, the resignation or removal of
the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee;
provided
all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section
7.09
|
Successor Trustee by Merger,
etc
.
|
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
Section
7.10
|
Eligibility;
Disqualification
.
|
There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50,000,000 as set
forth
in its most recent published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements of Trust
Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust
Indenture Act Section 310(b).
Section
7.11
|
Preferential Collection of Claims Against
Issuer
.
|
The
Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has
resigned or been removed shall be subject to Trust Indenture Act Section 311(a)
to the extent indicated therein.
ARTICLE
8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
8.01
|
Option to Effect Legal Defeasance or Covenant
Defeasance
.
|
The
Issuer may, at its option and at any time, elect to have either Section 8.02
or
8.03 hereof applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article 8.
Section
8.02
|
Legal Defeasance and
Discharge
.
|
Upon
the
Issuer’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes and
Guarantees on the date the conditions set forth below are satisfied
(“
Legal
Defeasance
”).
For
this purpose, Legal Defeasance means that the Issuer shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture including that of the Guarantors
(and the Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged
hereunder:
(a)
the
rights of Holders of Notes issued under this Indenture to receive payments
in
respect of the principal of, premium, if any, and interest on the Notes when
such payments are due solely out of the trust created pursuant to this Indenture
referred to in Section 8.04 hereof;
(b)
the
Issuer’s obligations with respect to Notes concerning issuing temporary notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and
the
maintenance of an office or agency for payment and money for security payments
held in trust;
(c)
the
rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s
obligations in connection therewith; and
(d)
this
Section 8.02.
Subject
to compliance with this Article 8, the Issuer may exercise its option under
this
Section 8.02 notwithstanding the prior exercise of its option under Section
8.03
hereof.
Section
8.03
|
Covenant Defeasance
.
|
Upon
the
Issuer’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from their
obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof and clauses (4) and
(5)
of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section
8.04
hereof are satisfied (“
Covenant
Defeasance
”),
and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01
hereof, but, except as specified above, the remainder of this Indenture and
such
Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3), 6.01(4), 6.01(5),
6.01(6)
(solely with respect to Restricted Subsidiaries that are Significant
Subsidiaries), 6.01(7) (solely with respect to Restricted Subsidiaries that
are
Significant Subsidiaries) and 6.01(8) hereof shall not constitute Events
of
Default.
Section
8.04
|
Conditions to Legal or Covenant
Defeasance
.
|
The
following shall be the conditions to the application of either Section 8.02
or
8.03 hereof to the outstanding Notes:
In
order
to exercise either Legal Defeasance or Covenant Defeasance with respect to
the
Notes:
(1)
the
Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion
of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest due on the Notes issued under this
Indenture on the stated maturity date or on the redemption date, as the case
may
be, of such principal, premium, if any, or interest on such Notes and the Issuer
must specify whether such Notes are being defeased to maturity or to a
particular redemption date;
(2)
in
the
case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions,
(a)
the
Issuer has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or
(b)
since
the
original issuance of the Notes, there has been a change in the applicable U.S.
federal income tax law,
in
either
case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, subject to customary assumptions and exclusions, the Holders of the Notes
will not recognize income, gain or loss for U.S. federal income tax purposes,
as
applicable, as a result of such Legal Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times
as would have been the case if such Legal Defeasance had not
occurred;
(3)
in
the
case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions, the Holders of the Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Covenant Defeasance and will be subject to such tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4)
no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith)
shall have occurred and be continuing on the date of such deposit;
(5)
such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Senior Credit Facilities the
Senior Subordinated Indenture, the Senior Subordinated Notes or any other
material agreement or instrument (other than this Indenture) to which the Issuer
or any Guarantor is a party or by which the Issuer or any Guarantor is bound
(other than that resulting from borrowing funds to be applied to make the
deposit required to effect such Legal Defeasance or Covenant Defeasance and
any
similar and simultaneous deposit relating to other Indebtedness and, in each
case, the granting of Liens in connection therewith);
(6)
the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary
assumptions
and
exclusions following the deposit, the trust funds will not be subject to the
effect of Section 547 of Title 11 of the United States Code;
(7)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate stating that
the deposit was not made by the Issuer with the intent of
defeating,
hindering, delaying or defrauding any creditors of the Issuer or any Guarantor
or others; and
(8)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to
customary
assumptions and exclusions) each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance,
as
the case
may be, have been complied with.
Section
8.05
|
Deposited
Money
and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions
.
|
Subject
to Section 8.06 hereof, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “
Trustee
”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as
the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Special Interest, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for
the account of the Holders of the outstanding Notes.
Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Issuer from time to time upon the request of the Issuer any money
or
Government Securities held by it as provided in Section 8.04 hereof which,
in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may
be the opinion delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section
8.06
|
Repayment to Issuer
.
|
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Issuer,
in
trust for the payment of the principal of, premium and Special Interest, if
any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium and Special Interest, if any, or interest has become
due
and payable shall be paid to the Issuer on its request or (if then held by
the
Issuer) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Issuer for payment thereof, and all liability of
the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease.
Section
8.07
|
Reinstatement
.
|
If
the
Trustee or Paying Agent is unable to apply any United States dollars or
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Issuer’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply
all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may
be;
provided
that, if
the Issuer makes any payment of principal of, premium and Special Interest,
if
any, or interest on any Note following the reinstatement of its obligations,
the
Issuer shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE
9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01
|
Without Consent of Holders of
Notes
.
|
Notwithstanding
Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee
or
this Indenture) and the Trustee may amend or supplement this Indenture, any
Guarantee or Notes without the consent of any Holder:
(1)
to
cure
any ambiguity, omission, mistake, defect or inconsistency;
(2)
to
provide for uncertificated Notes of such series in addition to or in place
of
certificated Notes;
(3)
to
comply
with Section 5.01 hereof;
(4)
to
provide for the assumption of the Issuer’s or any Guarantor’s obligations to the
Holders;
(5)
to
make
any change that would provide any additional rights or benefits to the Holders
or that does not adversely affect the legal rights under this Indenture of
any
such Holder;
(6)
to
add
covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;
(7)
to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the Trust Indenture Act;
(8)
to
evidence and provide for the acceptance and appointment under this Indenture
of
a successor Trustee thereunder pursuant to the requirements
thereof;
(9)
to
provide for the issuance of Exchange Notes or private exchange notes, which
are
identical to Exchange Notes except that they are not freely
transferable;
(10)
to
add a
Guarantor under this Indenture;
(11)
to
conform the text of this Indenture, Guarantees or the Notes to any provision
of
the “Description of Senior Notes” section of the Offering Circular to the extent
that such provision in such “Description of Senior Notes” section was intended
to be a verbatim recitation of a provision of this Indenture, Guarantee or
Notes; and
(12)
to
make
any amendment to the provisions of this Indenture relating to the transfer
and
legending of Notes as permitted by this Indenture, including, without limitation
to facilitate the issuance and administration of the Notes;
provided
,
however
,
that
(i) compliance with this Indenture as so amended would not result in Notes
being
transferred in violation of the Securities Act or any applicable securities
law
and (ii) such amendment does not materially and adversely affect the rights
of
Holders to transfer Notes;
Upon
the
request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Issuer and the Guarantors in the execution
of
any amended or supplemental indenture authorized or permitted by the terms
of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter
into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise. Notwithstanding the foregoing,
no Opinion of Counsel shall be required in connection with the addition of
a
Guarantor under this Indenture upon execution and delivery by such Guarantor
and
the Trustee of a supplemental indenture to this Indenture, the form of which
is
attached as
Exhibit
D
hereto,
and delivery of an Officer’s Certificate.
Section
9.02
|
With Consent of Holders of
Notes
.
|
Except
as
provided below in this Section 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes and the Guarantees with the consent of
the
Holders of at least a majority in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a Default
or Event of Default in the payment of the principal of, premium and Special
Interest, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the Guarantees or the Notes may be waived with the consent
of
the Holders of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for,
or
purchase of, the Notes). Section 2.08 hereof and Section 2.09 hereof shall
determine which Notes are considered to be “outstanding” for the purposes of
this Section 9.02.
Upon
the
request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of
the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Sections 7.02 and 12.04 hereof, the Trustee
shall join with the Issuer in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.
It
shall
not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Issuer shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or
waiver.
Without
the consent of each affected Holder of Notes, an amendment or waiver under
this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(1)
reduce
the principal amount of such Notes whose Holders must consent to an amendment,
supplement or waiver;
(2)
reduce
the principal of or change the fixed final maturity of any such Note or alter
or
waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Section 3.09, Section 4.10 and Section 4.14 hereof to
the
extent that any such amendment or waiver does not have the effect of reducing
the principal of or changing the fixed final maturity of any such Note or
altering or waiving the provisions with respect to the redemption of such
Notes);
(3)
reduce
the rate of or change the time for payment of interest on any Note;
(4)
waive
a
Default in the payment of principal of or premium, if any, or interest on the
Notes, except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of
the
payment default that resulted from such acceleration, or in respect of a
covenant or provision contained in this Indenture or any Guarantee which cannot
be amended or modified without the consent of all Holders;
(5)
make
any
Note payable in money other than that stated therein;
(6)
make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders to receive payments of principal of or premium, if
any,
or interest on the Notes;
(7)
make
any
change in these amendment and waiver provisions;
(8)
impair
the right of any Holder to receive payment of principal of, or interest on
such
Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s
Notes;
(9)
make
any
change to or modify the ranking of the Notes that would adversely affect the
Holders; or
(10)
except
as
expressly permitted by this Indenture, modify the Guarantees of any Significant
Subsidiary in any manner adverse to the Holders of the Notes.
Section
9.03
|
Compliance with Trust Indenture
Act
.
|
Every
amendment or supplement to this Indenture or the Notes shall be set forth in
an
amended or supplemental indenture that complies with the Trust Indenture Act
as
then in effect.
Section
9.04
|
Revocation and Effect of
Consents
.
|
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The
Issuer may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders entitled to consent to any amendment, supplement, or
waiver. If a record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only such Persons, shall be entitled to consent to
such
amendment, supplement, or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date.
No
such consent shall be valid or effective for more than 120 days after such
record date unless the consent of the requisite number of Holders has been
obtained.
Section
9.05
|
Notation on or Exchange of
Notes
.
|
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Issuer in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06
|
Trustee to Sign Amendments,
etc
.
|
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant
to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuer may not
sign an amendment, supplement or waiver until the board of directors approves
it. In executing any amendment, supplement or waiver, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition
to
the
documents required by Section 12.04 hereof, an Officer’s Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuer
and any Guarantors party thereto, enforceable against them in accordance
with
its terms, subject to customary exceptions, and complies with the provisions
hereof (including Section 9.03). Notwithstanding the foregoing, no Opinion
of
Counsel will be required for the Trustee to execute any amendment or supplement
adding a new Guarantor under this Indenture.
Section
9.07
|
Payment for Consent
.
|
Neither
the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay
or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to all Holders and is paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
ARTICLE
10
GUARANTEES
Subject
to this Article 10, each of the Guarantors hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
or
the obligations of the Issuer hereunder or thereunder, that: (a) the principal
of, interest, premium and Special Interest, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the Issuer to the Holders
or the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in
case
of any extension of time of payment or renewal of any Notes or any of such
other
obligations, that same shall be promptly paid in full when due or performed
in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee
of
collection.
The
Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof,
the
recovery of any judgment against the Issuer, any action to enforce the same
or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenants
that this Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and this Indenture.
Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing
any rights under this Section 10.01.
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Issuer or the Guarantors, any amount
paid either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes
of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article 6 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under the Guarantees.
Each
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for
the
benefit of creditors or should a receiver or trustee be appointed for all or
any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes or Guarantees, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Notes shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid
and
not so rescinded, reduced, restored or returned.
In
case
any provision of any Guarantee shall be invalid, illegal or unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
The
Guarantee issued by any Guarantor shall be a senior unsecured obligation of
such
Guarantor. The Guarantees shall rank equally in right of payment with all
existing and future Senior Indebtedness of the Guarantor but, to the extent
of
the value of the collateral, will be effectively senior to all of the
Guarantor’s unsecured Senior Indebtedness and, to the extent of the collateral,
will be effectively subordinated to the Guarantor’s Obligations under the Senior
Credit Facilities. The Guarantees will be senior in right of payment to all
existing and future Subordinated Indebtedness of each Guarantor. The Notes
will
be structurally subordinated to Indebtedness and other liabilities of
Subsidiaries of the Issuer that do not Guarantee the Notes.
Each
payment to be made by a Guarantor in respect of its Guarantee shall be made
without set-off, counterclaim, reduction or diminution of any kind or
nature.
Section 10.02
|
Limitation
on Guarantor Liability
.
|
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or
any similar federal or state law to the extent applicable to any Guarantee.
To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor shall be limited
to the maximum amount as will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Guarantor that are relevant
under such laws and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this
Article 10, result in the obligations of such Guarantor under its Guarantee
not
constituting a fraudulent conveyance or fraudulent transfer under applicable
law. Each Guarantor that makes a payment under its Guarantee shall be entitled
upon payment in full of all guaranteed obligations under this Indenture to
a
contribution from each other Guarantor in an amount equal to such other
Guarantor’s
pro
rata
portion
of such payment based on the respective net assets of all the Guarantors at
the
time of such payment determined in accordance with GAAP.
Section 10.03
|
Execution
and Delivery
.
|
To
evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby
agrees that this Indenture shall be executed on behalf of such Guarantor by
its
President, one of its Vice Presidents or one of its Assistant Vice
Presidents.
Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof
shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Guarantee on the Notes.
If
an
Officer whose signature is on this Indenture no longer holds that office at
the
time the Trustee authenticates the Note, the Guarantee shall be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantee set forth in this Indenture
on
behalf of the Guarantors.
If
required by Section 4.15 hereof, the Issuer shall cause any newly created or
acquired Restricted Subsidiary to comply with the provisions of Section 4.15
hereof and this Article 10, to the extent applicable.
Section 10.04
|
Subrogation
.
|
Each
Guarantor shall be subrogated to all rights of Holders of Notes against the
Issuer in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 10.01 hereof;
provided
that, if
an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon,
such
right of subrogation until all amounts then due and payable by the Issuer under
this Indenture or the Notes shall have been paid in full.
Section 10.05
|
Benefits
Acknowledged
.
|
Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the guarantee
and waivers made by it pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
Section 10.06
|
Release
of Guarantees
.
|
A
Guarantee by a Guarantor shall be automatically and unconditionally released
and
discharged, and no further action by such Guarantor, the Issuer or the Trustee
is required for the release of such Guarantor’s Guarantee, upon:
(1)
(A)
any
sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
such
Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all
the
assets of such Guarantor which sale, exchange or transfer is made in compliance
with the applicable provisions of this Indenture
;
(
B
)
the
release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such
Guarantee, except a discharge or release by or as a result of payment under
such
guarantee;
(C)
the
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof and the definition of
“Unrestricted Subsidiary” hereunder; or
(D)
the
exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuer’s obligations under this
Indenture being discharged in accordance with the terms of this Indenture;
and
(2)
such
Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section 11.01
|
Satisfaction
and Discharge
.
|
This
Indenture shall be discharged and shall cease to be of further effect as to
all
Notes, when either:
(1)
all
Notes
theretofore authenticated and delivered, except lost, stolen or destroyed Notes
which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for
cancellation; or
(2)
(A)
all
Notes not theretofore delivered to the Trustee for cancellation have become
due
and payable by reason of the making of a notice of redemption or otherwise,
shall become due and payable within one year or may be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of
notice of redemption by the Trustee in
the
name,
and at the expense, of the Issuer, and the Issuer or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds
in trust solely for the benefit of the Holders of the Notes, cash in U.S.
dollars, Government Securities, or a combination thereof, in such amounts
as
will be sufficient without consideration of any reinvestment of interest
to pay
and discharge the entire indebtedness on the Notes not theretofore delivered
to
the Trustee for cancellation for principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(B)
no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith)
with respect to this Indenture or the Notes shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default, under the Senior Credit Facilities or any other material
agreement or instrument (other than this Indenture) to which the Issuer or
any
Guarantor is a party or by which the Issuer or any Guarantor is bound (other
than that resulting from borrowing funds to be applied to make such deposit
and
any similar and simultaneous deposit relating to other Indebtedness and in
each
case, the granting of Liens in connection therewith);
(C)
the
Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and
(D)
the
Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be.
In
addition, the Issuer must deliver an Officer’s Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (A) of clause (2) of this
Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall
survive.
Section 11.
02
|
Application
of Trust Money
.
|
Subject
to the provisions of Section
8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly
or
through any Paying Agent (including the Issuer acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium and Special Interest, if any) and interest for whose payment such
money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
If
the Trustee or Paying Agent is
unable to apply any money or Government Securities in accordance with Section
11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer’s and any Guarantor’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 11.01 hereof;
provided
that if
the Issuer has made any payment of principal of, premium and Special Interest,
if any, or interest on any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the
Holders
of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
ARTICLE
12
MISCELLANEOUS
Section
12.01
|
Trust
Indenture Act Controls
.
|
If
any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Trust Indenture Act Section 318(c), the imposed duties shall
control.
Any
notice or communication by the Issuer, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), fax or
overnight air courier guaranteeing next day delivery, to the others’
address:
If
to the
Issuer and/or any Guarantor:
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
If
to the
Trustee:
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
The
Issuer, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five calendar days after being deposited in the mail, postage prepaid, if mailed
by first-class mail; when receipt acknowledged, if faxed; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery;
provided
that any
notice or communication delivered to the Trustee shall be deemed effective
upon
actual receipt thereof.
Any
notice or communication to a Holder shall be mailed by first-class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by
the
Registrar. Any notice or communication shall also be so mailed to any Person
described in Trust Indenture Act Section 313(c), to the extent required by
the
Trust
Indenture
Act. Failure to mail a notice or communication to a Holder or any defect
in it
shall not affect its sufficiency with respect to other
Holders.
If
a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Issuer mails a notice or communication to Holders, it shall mail a copy to
the
Trustee and each Agent at the same time.
Section
12.03
|
Communication
by Holders of Notes with Other Holders of
Notes
.
|
Holders
may communicate pursuant to Trust Indenture Act Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Registrar and anyone else shall have the protection
of
Trust Indenture Act Section 312(c).
Section
12.04
|
Certificate
and Opinion as to Conditions
Precedent
.
|
(a)
Upon
any
request or application by the Issuer or any of the Guarantors to the Trustee
to
take any action under this Indenture, the Issuer or such Guarantor, as the
case
may be, shall furnish to the Trustee:
(b)
An
Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(c)
An
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section
12.05
|
Statements
Required in Certificate or
Opinion
.
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
Section 4.04 hereof or Trust Indenture Act Section 314(a)(4)) shall comply
with
the provisions of Trust Indenture Act Section 314(e) and shall
include:
(a)
a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b)
a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c)
a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with (and, in the case of an Opinion of Counsel, may be limited to
reliance on an Officer’s Certificate as to matters of fact); and
(d)
a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been complied with.
Section
12.06
|
Rules
by Trustee and Agents
.
|
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
.
|
No
director, officer, employee, incorporator or stockholder of the Issuer or any
Guarantor or any of their parent companies (other than the Issuer and the
Guarantors) shall have any liability for any obligations of the Issuer or the
Guarantors under the Notes, the Guarantees or this Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each Holder by accepting the Notes waives and releases all such liability.
The
waiver and release are part of the consideration for issuance of the
Notes.
Section
12.08
|
Governing
Law
.
|
THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
12.09
|
Waiver
of Jury Trial
.
|
EACH
OF
THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
12.10
|
Force
Majeure
.
|
In
no
event shall the Trustee be responsible or liable for any failure or delay in
the
performance of its obligations under this Indenture arising out of or caused
by,
directly or indirectly, forces beyond its reasonable control, including without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services.
Section
12.11
|
No
Adverse Interpretation of Other
Agreements
.
|
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Issuer or its Restricted Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section
12.12
|
Successors
.
|
All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 10.06 hereof.
Section
12.13
|
Severability
.
|
In
case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
12.14
|
Counterpart
Originals
.
|
The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same
agreement.
Section
12.15
|
Table
of Contents, Headings, etc
.
|
The
Table
of Contents, Cross-Reference Table and headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
Section
12.16
|
Qualification
of Indenture
.
|
The
Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture
Act in accordance with the terms and conditions of the Registration Rights
Agreement and shall pay all reasonable costs and expenses (including attorneys’
fees and expenses for the Issuer, the Guarantors and the Trustee) incurred
in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture and
the Notes. The Trustee shall be entitled to receive from the Issuer and the
Guarantors any such Officer’s Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the Trust Indenture Act.
[Signatures
on following pages]
BUCK
ACQUISITION
CORP.
By:
/s/
Raj Agrawal
Name:
Raj
Agrawal
Title:
Vice
President
DOLLAR
GENERAL
CORPORATION
By:
/s/
Wade Smith
Name:
Wade
Smith
Title:
Vice
President and Treasurer
Signature
Page to Indenture
Each
of the
GUARANTORS
listed
on Schedule I
hereto
By:
/s/
Wade Smith
Name:
Wade
Smith
Title:
Treasurer
Signature
Page to Indenture
WELLS
FARGO BANK,
NATIONAL ASSOCIATION
as
Trustee
By:
/
s/
Maddy Hall
Name:
Maddy
Hall
Title:
Assistant
Vice President
SCHEDULE
I
Guarantors
DG
Retail, LLC
Dolgencorp,
Inc.
Dolgencorp
of New York, Inc.
Dolgencorp
of Texas, Inc.
DG
Transportation, Inc.
DG
Logistics LLC
DGC
Properties LLC
South
Boston Holdings, Inc.
Sun
Dollar, L.P.
South
Boston FF&E, LLC
DG
Promotions, Inc. [f/k/a Nations Title Company, Inc.]
Dollar
General Investment, Inc.
Dollar
General Merchandising, Inc. [f/k/a Lonestar Administrative Services,
Inc.]
Dollar
General Partners
DGC
Properties of Kentucky, LLC
EXHIBIT
A
[Face
of
Note]
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
CUSIP
[
]
ISIN
[
]
[[RULE
144A]
[REGULATION
S]
GLOBAL
NOTE
10.625%
Senior Notes due 2015
No.
___
[$______________]
BUCK
ACQUISITION CORP.
promises
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of
________________________ United States Dollars] on July 15, 2015.
Interest
Payment Dates: January 15 and July 15
Record
Dates: January 1 and July 1
1
Rule
144A Note CUSIP: [
]
Rule
144A Note ISIN: [
]
Regulation
S Note CUSIP: [
]
Regulation S Note ISIN: [
]
Exchange Note CUSIP: [
]
Exchange Note ISIN: [
]
IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
July 6, 2007
BUCK
ACQUISITION
CORP.
By:
Name:
Title:
This
is
one of the Notes referred to in the within-mentioned Indenture.
WELLS
FARGO BANK,
NATIONAL ASSOCIATION,
as
Trustee
By:
Authorized
Signatory
[Back
of
Note]
10.625%
Senior Notes due 2015
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1.
INTEREST.
Buck Acquisition Corp., a Tennessee corporation, promises to pay interest on
the
principal amount of this Note at 10.625% per annum from July 6, 2007 until
maturity and shall pay the Special Interest, if any, payable pursuant to the
Registration Rights Agreement referred to below. The Issuer will pay interest
and Special Interest, if any, semi-annually in arrears on January 15 and July
15
of each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “
Interest
Payment Date
”).
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided
that the
first Interest Payment Date shall be January 15, 2008. The Issuer will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time
on
demand at the interest rate on the Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, (without regard to any
applicable grace periods) from time to time on demand at the interest rate
on
the Notes. Interest will be computed on the basis of a 360-day year comprised
of
twelve 30-day months.
2.
METHOD
OF
PAYMENT. The Issuer will pay interest on the Notes and Special Interest, if
any,
to the Persons who are registered Holders of Notes at the close of business
on
January 1 and July 1 (whether or not a Business Day), as the case may be, next
preceding the Interest Payment Date, even if such Notes are canceled after
such
record date and on or before such Interest Payment Date, except as provided
in
Section 2.12 of the Indenture with respect to defaulted interest. Payment of
interest and Special Interest, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders,
provided
that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Special Interest, if any,
on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Issuer or the Paying Agent. Such payment
shall
be in such coin or currency of the United States of America as at the time
of
payment is legal tender for payment of public and private debts.
3.
PAYING
AGENT AND REGISTRAR. Initially, Wells Fargo Bank, National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to the Holders. The
Issuer or any of its Subsidiaries may act in any such capacity.
4.
INDENTURE.
The Issuer issued the Notes under an Indenture, dated as of July 6, 2007 (the
“
Indenture
”),
among
Buck Acquisition Corp., Dollar General Corporation, the Guarantors named therein
and the Trustee. This Note is one of a duly authorized issue of notes of the
Issuer designated as its 10.625% Senior Notes due 2015. The Issuer shall be
entitled to issue Additional Notes pursuant to Sections 2.01 and 4.09 of
the Indenture. The terms of the Notes include those stated in the Indenture
and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the “
Trust
Indenture Act
”).
The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of
this
Note conflicts with the express provisions of the Indenture, the provisions
of
the Indenture shall govern and be controlling.
5.
OPTIONAL
REDEMPTION.
(a)
Except
as
set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to July 15, 2011.
(b)
At
any
time prior to July 15, 2011, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class
mail to the registered address of each Holder of Notes or otherwise in
accordance with the procedures of DTC, at a redemption price equal to 100%
of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Special Interest, if any, to the date of
redemption (the “
Redemption
Date
”),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(c)
On
and
after July 15, 2011, the Issuer may redeem the Notes, in whole or in part,
upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to the registered address of each Holder of Notes or otherwise in accordance
with the procedures of DTC, at the redemption prices (expressed as percentages
of principal amount of the Notes to be redeemed) set forth below, plus accrued
and unpaid interest thereon and Special Interest, if any, to the applicable
Redemption Date, subject to the right of Holders of Notes of record on the
relevant record date to receive interest due on the relevant interest payment
date, if redeemed during the twelve-month period beginning on July 15 of each
of
the years indicated below:
Year
|
Percentage
|
2011
|
105.313%
|
2012
|
102.656%
|
2013
and thereafter
|
100.000%
|
(d)
In
addition, until July 15, 2010, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Notes at a
redemption price equal to 110.625% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and Special Interest, if any, to the
applicable Redemption Date, subject to the right of Holders of Notes of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at
least 50% of the sum of the original aggregate principal amount of Notes issued
under the Indenture and the original principal amount of any Additional Notes
that are Notes issued under the Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
provided
further
that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering.
(e)
Any
notice of any redemption may be given prior to the redemption thereof, and
any
such redemption or notice may, at the Issuer’s discretion, be subject to one or
more conditions precedent, including, but not limited to, completion of an
Equity Offering or other corporate transaction.
(f)
If
the
Issuer redeems less than all of the outstanding Notes, the Trustee shall select
the Notes to be redeemed in the manner described under Section 3.02 of the
Indenture.
(g)
Any
redemption pursuant to this paragraph 5 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 of the Indenture.
6.
MANDATORY
REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
7.
NOTICE
OF
REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption
will
be mailed by first-class mail at least 30 days but not more than 60 days before
the redemption date (except that redemption notices may be mailed more than
60
days prior to a redemption date if the notice is issued in connection with
Article 8 of the Indenture) to each Holder whose Notes are to be redeemed at
its
registered address. Notes in denominations larger than $2,000 may be redeemed
in
part but only in whole multiples of $1,000 in excess thereof, unless all of
the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
8.
OFFERS
TO
REPURCHASE.
(a)
Upon
the
occurrence of a Change of Control, the Issuer shall make an offer (a
“
Change
of Control Offer
”)
to
each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest thereon, if any, to the date of purchase (the
“
Change
of Control Payment
”).
The
Change of Control Offer shall be made in accordance with Section 4.14 of the
Indenture.
(b)
If
the
Issuer or any of its Restricted Subsidiaries consummates an Asset Sale, within
10 Business Days of each date that the aggregate amount of Excess Proceeds
exceeds $75.0 million, the Issuer shall make an offer to all Holders of the
Notes and, if required or permitted by the terms of any Senior Indebtedness,
to
the holders of such Senior Indebtedness (an “
Asset
Sale Offer
”),
to
purchase the maximum aggregate principal amount of the Notes and such Senior
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000
in
excess thereof that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any, to the date fixed
for
the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and such Senior
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate
purposes, subject to other covenants contained in the Indenture. If the
aggregate principal amount of Notes or Senior Indebtedness surrendered by such
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and such Senior Indebtedness to be purchased on a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount
of Excess Proceeds shall be reset at zero.
(c)
The
Issuer may, at its option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale;
provided
that
such
Asset Sale Offer shall be in an aggregate amount of not less than
$75.0 million. Upon consummation of such Asset Sale Offer, any Net Proceeds
not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
9.
DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The
transfer of Notes may be registered and Notes may be exchanged as provided
in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Notes or portion
of
Notes
selected for redemption, except for the unredeemed portion of any Notes being
redeemed in part. Also, the Issuer need not exchange or register the transfer
of
any Notes for a period of 15 days before a selection of Notes to be
redeemed.
10.
PERSONS
DEEMED OWNERS. The registered Holder of Notes may be treated as its owner for
all purposes.
11.
AMENDMENT,
SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be amended
or supplemented as provided in the Indenture.
12.
DEFAULTS
AND REMEDIES. The Events of Default relating to the Notes are defined in Section
6.01 of the Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 30% in principal amount of the then
outstanding Notes may declare the principal, premium, if any, interest and
any
other monetary obligations on all the then outstanding Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event
of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable immediately without further action or notice.
Holders may not enforce the Indenture, the Notes or the Guarantees except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default (except a Default relating
to the payment of principal, premium, if any, Special Interest, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the
Notes waive any existing Default or and its consequences under the Indenture
except a continuing Default in payment of the principal of, premium, if any,
Special Interest, if any, or interest on, any of the Notes held by a
non-consenting Holder. The Issuer and each Guarantor (to the extent that such
Guarantor is so required under the Trust Indenture Act) is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and
the Issuer is required within five (5) Business Days after becoming aware of
any
Default, to deliver to the Trustee a statement specifying such Default and
what
action the Issuer proposes to take with respect thereto.
13.
AUTHENTICATION.
This Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose until authenticated by the manual signature of
the
Trustee.
14.
ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes shall have all the
rights set forth in the Registration Rights Agreement, dated as of July 6,
2007,
among Buck Acquisition Corp., Dollar General Corporation, the Guarantors named
therein and the other parties named on the signature pages thereof (the
“
Registration
Rights Agreement
”),
including the right to receive Special Interest (as defined in the Registration
Rights Agreement).
15.
G
OVERNING
LAW. THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16.
CUSIP/ISIN
NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers
to
be
printed on the Notes and the Trustee may use CUSIP/ISIN numbers in notices
of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in
any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The
Issuer will furnish to any Holder upon written request and without charge a
copy
of the Indenture and/or the Registration Rights Agreement. Requests may be
made
to the Issuer at the following address:
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note to:
(Insert
assignee’s legal name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or type
assignee’s name, address and zip code)
and
irrevocably appoint
to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.
Date:
_____________________
Your
Signature:
(Sign
exactly as your name appears on
the
face of this Note)
Signature
Guarantee*: __________________________________
*
Participant in a recognized Signature Guarantee Medallion Program (or
other
signature
guarantor acceptable to the Trustee).
OPTION
OF
HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Note purchased by the Issuer pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
[ ]
Section 4.10
[ ]
Section 4.14
If
you
want to elect to have only part of this Note purchased by the Issuer pursuant
to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to
have purchased:
$_______________
Date:
_____________________
Your
Signature:
(Sign
exactly as your
name appears on
the
face of this
Note)
Tax Identification No.:
Signature
Guarantee*: __________________________________
*
Participant in a recognized Signature Guarantee Medallion Program (or
other
signature
guarantor acceptable to the Trustee).
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The
initial outstanding principal amount of this Global Note is $__________. The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
or Definitive Note for an interest in this Global Note, have been
made:
Date
of Exchange
|
Amount
of decrease
in
Principal Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount of
this
Global Note
following
such
decrease
or increase
|
Signature
of
authorized
officer
of
Trustee or
Custodian
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
__________________
*This
schedule should be included only if the Note is issued in global
form
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRANSFER
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
Re:
10.625% Notes due 2015
Reference
is hereby made to the Indenture, dated as of July 6, 2007 (the “
Indenture
”),
among
Buck Acquisition Corp., Dollar General Corporation, the Guarantors named therein
and the Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
_______________
(the “
Transferor
”)
owns
and proposes to transfer the Note[s] or interest in such Note[s] specified
in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “
Transfer
”),
to
_______________ (the “
Transferee
”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the “
Securities
Act
”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note
for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account
is a
“qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United
States.
2.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the
Transferee
was outside the United States or such Transferor and any Person acting on
its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction
was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act (iii) the transaction is
not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a
U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with
the
terms of the Indenture, the transferred beneficial interest or Definitive
Note
will be subject to the restrictions on Transfer enumerated in the Indenture
and
the Securities Act.
3.
[ ]
CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN
THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN
RULE 144A OR REGULATION S. The Transfer is being effected in compliance with
the
transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with
the
Securities Act and any applicable blue sky securities laws of any state of
the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a)
[ ]
such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b)
[ ]
such
Transfer is being effected to the Issuer or a subsidiary thereof;
or
(c)
[ ]
such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act.
4.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a)
[ ]
CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in
the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b)
[ ]
CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and
the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c)
[ ]
CHECK
IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904
and
in compliance with the transfer restrictions contained in the Indenture and
any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer.
[Insert
Name of Transferor]
By:
Name:
Title:
Dated:
_______________________
ANNEX
A
TO CERTIFICATE OF TRANSFER
1.
The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
(a)
[ ]
a beneficial interest in the:
(i)
[ ]
144A Global Note (CUSIP [
]
2
[
]
),
or
(ii)
[ ]
Regulation S Global Note (CUSIP [
]
1
[
]
2
[
]),
or
(b)
[ ]
a Restricted Definitive Note.
2.
After
the
Transfer the Transferee will hold:
[CHECK
ONE]
(a)
[ ]
a beneficial interest in the:
(i)
[ ]
144A Global Note (CUSIP [
]
1
[
]),
or
(ii)
[
]
Regulation S Global Note (CUSIP [
]
1
[
]), or
(iii)
[ ]
Unrestricted Global Note (CUSIP [
]
1
[
]);
or
(b)
[ ]
a Restricted Definitive Note; or
|
(c)
|
[ ]
an Unrestricted Definitive Note, in accordance with the terms of
the
Indenture.
|
EXHIBIT
C
FORM
OF
CERTIFICATE OF EXCHANGE
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
Re:
10.625% Notes due 2015
Reference
is hereby made to the Indenture, dated as of July 6, 2007 (the “
Indenture
”),
among
Buck Acquisition Corp., Dollar General Corporation, the Guarantors named therein
and the Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________
(the “
Owner
”)
owns
and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $__________ in such Note[s] or interests
(the
“
Exchange
”).
In
connection with the Exchange, the Owner hereby certifies that:
1)
EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE
a)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for
the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933,
as
amended (the “
Securities
Act
”),
(iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws
of
any state of the United States.
b)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global
Note
for
an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and
in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order
to
maintain compliance with the Securities Act and (iv) the Definitive Note
is
being acquired in compliance with any applicable blue sky securities laws
of any
state of the United States.
c)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN
AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
d)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE
NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2)
EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES
a)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of
the
Indenture, the Restricted Definitive Note issued will continue to be subject
to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities
Act.
b)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN A
RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial
interest
in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global
Note, with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation
of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and are dated ______________________.
[Insert
Name of
Transferor]
By:
Name:
Title:
Dated:
_______________________
EXHIBIT
D
[FORM
OF
SUPPLEMENTAL INDENTURE
TO
BE
DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental
Indenture (this “
Supplemental
Indenture
”),
dated
as of __________, among __________________ (the “
Guaranteeing
Subsidiary
”),
a
subsidiary of Dollar General Corporation, a Tennessee Corporation (the
“
Issuer
”),
and
Wells Fargo Bank, National Association, as trustee (the “
Trustee
”).
W
I T N E
S S E T H
WHEREAS,
each of Dollar General Corporation, Buck Acquisition Corp., and the Guarantors
(as defined in the Indenture referred to below) has heretofore executed and
delivered to the Trustee an indenture (the “
Indenture
”),
dated
as of July 6, 2007, providing for the issuance of an unlimited aggregate
principal amount of 10.625% Notes due 2015 (the “
Notes
”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuer’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (the “
Guarantee
”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Notes
as follows:
(1)
Capitalized
Terms
.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
(2)
Agreement
to Guarantee
.
The
Guaranteeing Subsidiary hereby agrees as follows:
(a)
Along
with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:
(i)
the
principal of and interest, premium and Special Interest, if any, on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuer to
the
Holders or the Trustee hereunder or thereunder will be promptly paid in full
or
performed, all in accordance with the terms hereof and thereof; and
(ii)
in
case
of any extension of time of payment or renewal of any Notes or any of such
other
obligations, that same will be promptly paid in full when due or performed
in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors and the Guaranteeing Subsidiary shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of payment and not
a
guarantee of collection.
(b)
The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense
of a
guarantor.
(c)
The
following is hereby waived: diligence, presentment, demand of payment, filing
of
claims with a court in the event of insolvency or bankruptcy of the Issuer,
any
right to require a proceeding first against the Issuer, protest, notice and
all
demands whatsoever.
(d)
This
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Guarantor under the Indenture.
(e)
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in relation
to
either the Issuer or the Guarantors, any amount paid either to the Trustee
or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f)
The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g)
As
between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the
Guaranteeing Subsidiary for the purpose of this Guarantee.
(h)
The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under this Guarantee.
(i)
Pursuant
to Section 10.02 of the Indenture, after giving effect to all other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent
conveyance
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor
in
respect of the obligations of such other Guarantor under Article 10 of the
Indenture, this new Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Guaranteeing Subsidiary under this Guarantee
will not constitute a fraudulent transfer or conveyance.
(j)
This
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for
the
benefit of creditors or should a receiver or trustee be appointed for all or
any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes and Guarantee, whether as a “voidable preference”,
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Note shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid
and
not so rescinded, reduced, restored or returned.
(k)
In
case
any provision of this Guarantee shall be invalid, illegal or unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
(l)
This
Guarantee shall be a general senior obligation of such Guaranteeing Subsidiary,
ranking equally in right of payment with all existing and future senior
Indebtedness of the Guaranteeing Subsidiary but, to the extent of the value
of
the collateral, will be effectively senior to all of the Guaranteeing
Subsidiary’s unsecured senior Indebtedness. The Guarantees will be senior in
right of payment to all existing and future Subordinated Indebtedness of each
Guarantor. The Notes will be structurally subordinated to Indebtedness and
other
liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes,
if
any.
(m)
Each
payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any
kind
or nature.
(3)
Execution
and Delivery
.
The
Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force
and
effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.
(4)
Merger,
Consolidation or Sale of All or Substantially All Assets
.
(a)
Except
as
otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether
or
not the Issuer or Guaranteeing Subsidiary is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i)
such
Guarantor is the surviving corporation or the Person formed by or surviving
any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(such Guarantor or such Person, as the case may be, being herein called the
“
Successor
Person
”);
(ii)
the
Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under the Indenture and such Guarantor’s related
Guarantee pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(iii)
immediately
after such transaction, no Default exists; and
(iv)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate, each
stating that such consolidation, merger or transfer and such supplemental
indentures, if any, comply with the Indenture; or
(v)
the
transaction is made in compliance with Section 4.09 of the
Indenture.
(b)
Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, such Guarantor under the Indenture and
such
Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may
(i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer
solely for the purpose of reincorporating the Guarantor in the United States,
any state thereof, the District of Columbia or any territory thereof or (iii)
convert into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor.
(5)
Releases
.
The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:
(1)
(A)
any
sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
such
Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all
the
assets of such Guarantor which sale, exchange or transfer is made in compliance
with the applicable provisions of this Indenture
;
(
B
)
the
release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such
Guarantee, except a discharge or release by or as a result of payment under
such
guarantee;
(C)
the
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof; or
(D)
the
exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuer’s obligations under this
Indenture being discharged in accordance with the terms of this Indenture;
and
(2)
such
Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.
(6)
No
Recourse Against Others
.
No
director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Issuer or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting Notes waives and releases all such liability. The waiver
and
release are part of the consideration for issuance of the Notes.
(7)
Governing
Law
.
THIS
SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEW YORK.
(8)
Counterparts
.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
(9)
Effect
of Headings
.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
(10)
The
Trustee
.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Guaranteeing Subsidiary.
(11)
Subrogation
.
The
Guaranteeing Subsidiary shall be subrogated to all rights of Holders of Notes
against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 10.01 of the
Indenture;
provided
that, if
an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary
shall not be entitled to enforce or receive any payments arising out of, or
based upon, such right of subrogation until all amounts then due and payable
by
the Issuer under the Indenture or the Notes shall have been paid in
full.
(12)
Benefits
Acknowledged
.
The
Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set
forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Indenture and this Supplemental Indenture and that the
guarantee and waivers made by it pursuant to this Guarantee are knowingly made
in contemplation of such benefits.
(13)
Successors
.
All
agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall
bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in
this
Supplemental Indenture shall bind its successors.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
[GUARANTEEING
SUBSIDIARY]
By:
Name:
Title:
WELLS
FARGO BANK,
NATIONAL ASSOCIATION,
as
Trustee
By:
Name:
Title:
D-6
EXHIBIT
4.9
EXECUTION
VERSION
INDENTURE
Among
BUCK
ACQUISITION CORP.,
DOLLAR
GENERAL CORPORATION,
THE
GUARANTORS NAMED ON SCHEDULE I HERETO
and
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Trustee
11.875%
/
12.625% SENIOR SUBORDINATED TOGGLE NOTES DUE 2017
CROSS-REFERENCE
TABLE*
Trust
Indenture Act Section
|
Indenture
Section
|
|
|
310
(a)(1)
...................................................................................................................................................................................
|
7.10
|
(a)(2)
....................................................................................................................................................................................
|
7.10
|
(a)(3)
....................................................................................................................................................................................
|
N.A.
|
(a)(4)
....................................................................................................................................................................................
|
N.A.
|
(a)(5)
....................................................................................................................................................................................
|
7.10
|
(b)
........................................................................................................................................................................................
|
7.10
|
(c)
........................................................................................................................................................................................
|
N.A.
|
311
(a)
........................................................................................................................................................................................
|
7.11
|
(b)
........................................................................................................................................................................................
|
7.11
|
(c)
........................................................................................................................................................................................
|
N.A.
|
312
(a)
........................................................................................................................................................................................
|
2.05
|
(b)
........................................................................................................................................................................................
|
14.03
|
(c)
........................................................................................................................................................................................
|
14.03
|
313
(a)
........................................................................................................................................................................................
|
7.06;
14.02
|
(b)(1)
....................................................................................................................................................................................
|
N.A.
|
(b)(2)
....................................................................................................................................................................................
|
7.06;
7.07
|
(c)
........................................................................................................................................................................................
|
7.06;
14.02
|
(d)
........................................................................................................................................................................................
|
7.06
|
314
(a)
........................................................................................................................................................................................
|
4.03;
14.02; 14.05
|
(b)
........................................................................................................................................................................................
|
N.A.
|
(c)(1)
....................................................................................................................................................................................
|
14.04
|
(c)(2)
....................................................................................................................................................................................
|
14.04
|
(c)(3)
....................................................................................................................................................................................
|
N.A.
|
(e)
........................................................................................................................................................................................
|
14.05
|
(f)
........................................................................................................................................................................................
|
N.A.
|
315
(a)
........................................................................................................................................................................................
|
7.01
|
(b)
........................................................................................................................................................................................
|
7.05;
14.02.
|
(c)
........................................................................................................................................................................................
|
7.01
|
(d)
........................................................................................................................................................................................
|
7.01
|
(e)
........................................................................................................................................................................................
|
6.14
|
316
(a)(last
sentence)
..................................................................................................................................................................
|
2.09
|
(a)(1)(A)
..............................................................................................................................................................................
|
6.05
|
(a)(1)(B)
...............................................................................................................................................................................
|
6.04
|
(a)(2)
....................................................................................................................................................................................
|
N.A.
|
(b)
........................................................................................................................................................................................
|
6.07
|
(c)
........................................................................................................................................................................................
|
9.04
|
317
(a)(1)
...................................................................................................................................................................................
|
6.08
|
(a)(2)
....................................................................................................................................................................................
|
6.12
|
(b)
........................................................................................................................................................................................
|
2.04
|
318
(a)
........................................................................................................................................................................................
|
14.01
|
(b)
........................................................................................................................................................................................
|
N.A.
|
(c)
........................................................................................................................................................................................
|
14.01
|
N.A.
means not applicable.
*
This
Cross-Reference Table is not part of the Indenture.
|
TABLE
OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
ARTICLE
1
|
|
|
|
|
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
|
|
|
|
|
Section
1.01
|
Definitions
|
1
|
Section
1.02
|
Other
Definitions
|
33
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act
|
34
|
Section
1.04
|
Rules
of Construction
|
34
|
Section
1.05
|
Acts
of Holders
|
35
|
ARTICLE
2
THE
NOTES
Section
2.01
|
Form
and Dating; Terms
|
36
|
Section
2.02
|
Execution
and Authentication
|
37
|
Section
2.03
|
Registrar
and Paying Agent
|
38
|
Section
2.04
|
Paying
Agent to Hold Money in Trust
|
39
|
Section
2.05
|
Holder
Lists
|
39
|
Section
2.06
|
Transfer
and Exchange
|
39
|
Section
2.07
|
Replacement
Notes
|
50
|
Section
2.08
|
Outstanding
Notes
|
50
|
Section
2.09
|
Treasury
Notes
|
51
|
Section
2.10
|
Temporary
Notes
|
51
|
Section
2.11
|
Cancellation
|
51
|
Section
2.12
|
Defaulted
Cash Interest
|
52
|
Section
2.13
|
CUSIP
and ISIN Numbers
|
52
|
ARTICLE
3
REDEMPTION
Section
3.01
|
Notices
to Trustee
|
52
|
Section
3.02
|
Selection
of Notes to Be Redeemed or Purchased
|
53
|
Section
3.03
|
Notice
of Redemption
|
53
|
Section
3.04
|
Effect
of Notice of Redemption
|
54
|
Section
3.05
|
Deposit
of Redemption or Purchase Price
|
54
|
Section
3.06
|
Notes
Redeemed or Purchased in Part
|
55
|
Section
3.07
|
Optional
Redemption
|
55
|
Section
3.08
|
Mandatory
Redemption
|
56
|
Section
3.09
|
Asset
Sales
|
56
|
|
|
Page
|
|
|
|
|
ARTICLE
4
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
Section
4.01
|
Payment
of Notes
|
58
|
Section
4.02
|
Maintenance
of Office or Agency
|
59
|
Section
4.03
|
Reports
and Other Information
|
59
|
Section
4.04
|
Compliance
Certificate
|
60
|
Section
4.05
|
Taxes
|
61
|
Section
4.06
|
Stay,
Extension and Usury Laws
|
61
|
Section
4.07
|
Limitation
on Restricted Payments
|
61
|
Section
4.08
|
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
|
68
|
Section
4.09
|
Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock
and
Preferred Stock
|
69
|
Section
4.10
|
Asset
Sales
|
75
|
Section
4.11
|
Transactions
with Affiliates
|
77
|
Section
4.12
|
Liens
|
79
|
Section
4.13
|
Corporate
Existence
|
80
|
Section
4.14
|
Offer
to Repurchase upon Change of Control
|
80
|
Section
4.15
|
Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries
|
82
|
Section
4.16
|
Limitation
on Layering
|
82
|
ARTICLE
5
SUCCESSORS
Section
5.01
|
Merger,
Consolidation or Sale of All or Substantially All Assets
|
83
|
Section
5.02
|
Successor
Corporation Substituted
|
85
|
ARTICLE
6
DEFAULTS
AND REMEDIES
Section
6.01
|
Events
of Default
|
85
|
Section
6.02
|
Acceleration
|
87
|
Section
6.03
|
Other
Remedies
|
88
|
Section
6.04
|
Waiver
of Past Defaults
|
88
|
Section
6.05
|
Control
by Majority
|
88
|
Section
6.06
|
Limitation
on Suits
|
88
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment
|
89
|
Section
6.08
|
Collection
Suit by Trustee
|
89
|
Section
6.09
|
Restoration
of Rights and Remedies
|
89
|
Section
6.10
|
Rights
and Remedies Cumulative
|
89
|
Section
6.11
|
Delay
or Omission Not Waiver
|
89
|
Section
6.12
|
Trustee
May File Proofs of Claim
|
90
|
Section
6.13
|
Priorities
|
90
|
Section
6.14
|
Undertaking
for Costs
|
91
|
|
|
Page
|
|
|
|
|
ARTICLE
7
|
|
|
|
|
|
TRUSTEE
|
|
|
|
|
Section
7.01
|
Duties
of Trustee
|
91
|
Section
7.02
|
Rights
of Trustee
|
92
|
Section
7.03
|
Individual
Rights of Trustee
|
93
|
Section
7.04
|
Trustee’s
Disclaimer
|
93
|
Section
7.05
|
Notice
of Defaults
|
93
|
Section
7.06
|
Reports
by Trustee to Holders of the Notes
|
93
|
Section
7.07
|
Compensation
and Indemnity
|
94
|
Section
7.08
|
Replacement
of Trustee
|
94
|
Section
7.09
|
Successor
Trustee by Merger, etc.
|
95
|
Section
7.10
|
Eligibility;
Disqualification
|
95
|
Section
7.11
|
Preferential
Collection of Claims Against Issuer
|
96
|
ARTICLE
8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
8.01
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
96
|
Section
8.02
|
Legal
Defeasance and Discharge
|
96
|
Section
8.03
|
Covenant
Defeasance
|
97
|
Section
8.04
|
Conditions
to Legal or Covenant Defeasance
|
97
|
Section
8.05
|
Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions
|
98
|
Section
8.06
|
Repayment
to Issuer
|
99
|
Section
8.07
|
Reinstatement
|
99
|
ARTICLE
9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01
|
Without
Consent of Holders of Notes
|
99
|
Section
9.02
|
With
Consent of Holders of Notes
|
101
|
Section
9.03
|
Compliance
with Trust Indenture Act
|
102
|
Section
9.04
|
Revocation
and Effect of Consents
|
102
|
Section
9.05
|
Notation
on or Exchange of Notes
|
103
|
Section
9.06
|
Trustee
to Sign Amendments, etc
|
103
|
Section
9.07
|
Payment
for Consent
|
103
|
ARTICLE
10
GUARANTEES
Section
10.01
|
Guarantee
|
103
|
Section
10.02
|
Limitation
on Guarantor Liability
|
105
|
Section
10.03
|
Execution
and Delivery
|
105
|
Section
10.04
|
Subrogation
|
106
|
|
|
|
|
|
Page
|
|
|
|
Section
10.05
|
Benefits
Acknowledged
|
106
|
Section
10.06
|
Release
of Guarantees
|
106
|
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01
|
Satisfaction
and Discharge
|
106
|
Section
11.02
|
Application
of Trust Money
|
107
|
ARTICLE
12
SUBORDINATION
OF NOTES
Section
12.01
|
Agreement
To Subordinate
|
108
|
Section
12.02
|
Liquidation,
Dissolution, Bankruptcy
|
108
|
Section
12.03
|
Default
on Senior Indebtedness of the Issuer
|
108
|
Section
12.04
|
Acceleration
of Payment of Notes
|
110
|
Section
12.05
|
When
Distribution Must Be Paid Over
|
110
|
Section
12.06
|
Subrogation
|
110
|
Section
12.07
|
Relative
Rights
|
110
|
Section
12.08
|
Subordination
May Not Be Impaired by Issuer
|
110
|
Section
12.09
|
Rights
of Trustee and Paying Agent
|
111
|
Section
12.10
|
Distribution
or Notice to Representative
|
111
|
Section
12.11
|
Article
12 Not To Prevent Events of Default or Limit Right To
Accelerate
|
111
|
Section
12.12
|
Trust
Moneys Not Subordinated
|
111
|
Section
12.13
|
Trustee
Entitled To Rely
|
111
|
Section
12.14
|
Trustee
To Effectuate Subordination
|
112
|
Section
12.15
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness of the
Issuer
|
112
|
Section
12.16
|
Reliance
by Holders of Senior Indebtedness of the Issuer on Subordination
Provisions
|
112
|
ARTICLE
13
SUBORDINATION
OF GUARANTEES
Section
13.01
|
Agreement
To Subordinate
|
113
|
Section
13.02
|
Liquidation,
Dissolution, Bankruptcy
|
113
|
Section
13.03
|
Default
on Senior Indebtedness of a Guarantor
|
114
|
Section
13.04
|
Acceleration
of Payment of Notes
|
115
|
Section
13.05
|
When
Distribution Must Be Paid Over
|
115
|
Section
13.06
|
Subrogation
|
115
|
Section
13.07
|
Relative
Rights
|
115
|
Section
13.08
|
Subordination
May Not Be Impaired by a Guarantor
|
116
|
Section
13.09
|
Rights
of Trustee and Paying Agent
|
116
|
Section
13.10
|
Distribution
or Notice to Representative
|
116
|
Section
13.11
|
Article
13 Not To Prevent Events of Default or Limit Right To Demand
Payment
|
116
|
Section
13.12
|
Trust
Moneys Not Subordinated
|
116
|
|
|
Page
|
|
|
|
Section
13.13
|
Trustee
Entitled To Rely
|
117
|
Section
13.14
|
Trustee
To Effectuate Subordination
|
117
|
Section
13.15
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness of
Guarantors
|
117
|
Section
13.16
|
Reliance
by Holders of Senior Indebtedness of a Guarantor on
Subordination
Provisions
|
117
|
ARTICLE
14
MISCELLANEOUS
Section
14.01
|
Trust
Indenture Act Controls
|
|
Section
14.02
|
Notices
|
118
|
Section
14.03
|
Communication
by Holders of Notes with Other Holders of Notes
|
118
|
Section
14.04
|
Certificate
and Opinion as to Conditions Precedent
|
119
|
Section
14.05
|
Statements
Required in Certificate or Opinion
|
119
|
Section
14.06
|
Rules
by Trustee and Agents
|
120
|
Section
14.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
120
|
Section
14.08
|
Governing
Law
|
120
|
Section
14.09
|
Waiver
of Jury Trial
|
120
|
Section
14.10
|
Force
Majeure
|
120
|
Section
14.11
|
No
Adverse Interpretation of Other Agreements
|
121
|
Section
14.12
|
Successors
|
121
|
Section
14.13
|
Severability
|
121
|
Section
14.14
|
Counterpart
Originals
|
121
|
Section
14.15
|
Table
of Contents, Headings, etc
|
121
|
Section
14.16
|
Qualification
of Indenture
|
121
|
SCHEDULES
Schedule I
Guarantors
EXHIBITS
Exhibit
A
Form
of
Note
Exhibit
B
Form
of
Certificate of Transfer
Exhibit
C
Form
of
Certificate of Exchange
Exhibit
D
Form
of
Supplemental Indenture to Be Delivered by Subsequent
Guarantors
INDENTURE,
dated as of July 6, 2007, among Buck Acquisition Corp, a Tennessee corporation
(the “
Issuer
”),
Dollar General Corporation, a Tennessee corporation (“Dollar General”), the
Guarantors (as defined herein) listed on the signature pages hereto and Wells
Fargo Bank, National Association, as Trustee.
The
Notes
(as defined herein) are being issued and sold in connection with the merger
of
the Issuer with and into Dollar General, whereby upon consummation of the
merger, Dollar General will continue as the surviving corporation and thereby
will assume all of the obligations of this Indenture, pursuant to an agreement
and plan of merger dated March 11, 2007 (the “
Merger
Agreement
”)
by and
among Buck Holdings, L.P., a Delaware limited partnership, the Issuer and Dollar
General.
W
I
T
N
E
S
S
E
T
H
WHEREAS,
the Issuer has duly authorized the creation of an issue of $725,000,000
aggregate principal amount of 11.875% / 12.625% Senior Subordinated Toggle
Notes
due 2017 (the “
Initial
Notes
”).
WHEREAS,
the Issuer and each of the Guarantors has duly authorized the execution and
delivery of this Indenture.
NOW,
THEREFORE, the Issuer, the Guarantors and the Trustee agree as follows for
the
benefit of each other and for the equal and ratable benefit of the Holders
of
the Notes.
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01
|
Definitions
.
|
“
144A
Global Note
”
means
a
Global Note substantially in the form of
Exhibit
A
attached
hereto bearing the Global Note Legend, the OID Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule
144A.
“
ABL
Collateral Agent
”
means
The CIT Group/Business Credit Inc., in its capacity as administrative agent
and
collateral agent for the lenders and other secured parties under the ABL
Facility and the credit, guarantee and security documents governing the ABL
Obligations, together with its successors and permitted assigns under the ABL
Facility exercising substantially the same rights and powers.
“
ABL
Facility
”
means
the Asset-Based Revolving Credit Agreement dated as of the Issue Date by and
among the Issuer, the lenders party thereto in their capacities as lenders
thereunder and The CIT Group/Business Credit Inc., as Administrative Agent,
including any guarantees, collateral documents, instruments and agreements
executed in connection therewith, and any amendments, supplements,
modifications, extensions, renewals, restatements, refundings or refinancings
thereof and any indentures, notes, debentures or credit facilities or commercial
paper facilities with banks or other institutional lenders or investors that
replace, refund or refinance any part of the loans, notes, other credit
facilities or commitments thereunder, including any such replacement, refunding
or refinancing facility or
indenture
that increases the amount borrowable thereunder or alters the maturity thereof
(
provided
that
such increase in borrowings is permitted under Section 4.09
hereof).
“
ABL
Facility Cap
”
means
an amount equal to the greater of (x) $1,125.0 million and (y) the sum of
(i) 85% of the net orderly liquidation value as determined in good faith by
the
Issuer of inventory of the Issuer and each Guarantor and (ii) 90% of all credit
card receivables of the Issuer and each Guarantor determined in accordance
with
GAAP.
“
ABL
Obligations
”
means
Obligations under the ABL Facility.
“
ABL
Secured Parties
”
means
each of (i) the ABL Collateral Agent on behalf of itself and the lenders
under the ABL Facility and lenders or their affiliates counterparty to related
Hedging Obligations and (ii) each other holder of ABL
Obligations.
“
Acquired
Indebtedness
”
means,
with respect to any specified Person,
(1)
Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Restricted Subsidiary of such
specified Person, and
(2)
Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“
Additional
Notes
”
means
additional Notes (other than the Initial Notes and other than Exchange Notes
for
such Initial Notes) issued from time to time under this Indenture in accordance
with Sections 2.01 and 4.09 hereof; provided that such term shall not include
any PIK Notes.
“
Affiliate
”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
“
Agent
”
means
any Registrar or Paying Agent.
“
Applicable
Premium
”
means,
with respect to any Note on any Redemption Date, the greater of:
(1)
1.0%
of
the principal amount of such Note; and
(2)
the
excess, if any, of (a) the present value at such Redemption Date of
(i) the redemption price of such Note at July 15, 2012 (such redemption
price being set forth in the tables appearing under Section 3.07(c)),
plus
(ii) all required interest payments calculated based on the Cash Interest
rate payable on such Note due on such Note through July 15, 2012 (excluding
accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points;
over (b) the principal amount of such Note.
“
Applicable
Procedures
”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depositary, Euroclear and/or
Clearstream that apply to such transfer or exchange.
“
Asset
Sale
”
means:
(1)
the
sale,
conveyance, transfer or other disposition, whether in a single transaction
or a
series of related transactions, of property or assets (including by way of
a
Sale and Lease-Back Transaction) of the Issuer or any of its Restricted
Subsidiaries (each referred to in this definition as a “disposition”);
or
(2)
the
issuance or sale of Equity Interests of any Restricted Subsidiary, whether
in a
single transaction or a series of related transactions (other than Preferred
Stock of Restricted Subsidiaries issued in compliance with Section 4.09
hereof);
in
each
case, other than:
(a)
any
disposition of Cash Equivalents or Investment Grade Securities or obsolete
or
worn out equipment in the ordinary course of business or any disposition of
inventory or goods (or other assets) held for sale in the ordinary course of
business;
(b)
the
disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to the provisions described under Section 5.01 hereof or
any
disposition that constitutes a Change of Control pursuant to this
Indenture;
(c)
the
making of any Restricted Payment or Permitted Investment that is permitted
to be
made, and is made, under Section 4.07 hereof;
(d)
any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of related transactions with an
aggregate fair market value of less than $25.0 million;
(e)
any
disposition of property or assets or issuance of securities by a Restricted
Subsidiary of the Issuer to the Issuer or by the Issuer or a Restricted
Subsidiary of the Issuer to another Restricted Subsidiary of the
Issuer;
(f)
to
the
extent allowable under Section 1031 of the Code or any comparable or
successor provision, any exchange of like property (excluding any boot thereon)
for use in a Similar Business;
(g)
the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;
(h)
any
issuance or sale of Equity Interests in, or Indebtedness or other securities
of,
an Unrestricted Subsidiary;
(i)
foreclosures
on assets;
(j)
sales
of
accounts receivable, or participations therein, in connection with the ABL
Facility or any Receivables Facility;
(k)
any
financing transaction with respect to property built or acquired by the Issuer
or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back
Transactions and asset securitizations permitted by this Indenture;
(l)
dispositions
in the ordinary course of business by any Restricted Subsidiary engaged in
the
insurance business in order to provide insurance to the Issuer and its
Subsidiaries;
(m)
the
unwinding of any Hedging Obligations; and
(n)
sales,
transfers and other dispositions of Investments in joint ventures to the extent
required by, or made pursuant to, customary buy/sell arrangements between the
joint venture parties set forth in joint venture arrangements and similar
binding arrangements.
“
Bankruptcy
Code
”
means
Title 11 of the United States Code, as amended.
“
Bankruptcy
Law
”
means
the Bankruptcy Code and any similar federal, state or foreign law for the relief
of debtors.
“
Broker-Dealer
”
has
the
meaning set forth in the Registration Rights Agreement.
“
Business
Day
”
means
each day which is not a Legal Holiday.
“
Capital
Stock
”
means:
(1)
in
the
case of a corporation, corporate stock;
(2)
in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3)
in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4)
any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“
Capitalized
Lease Obligation
”
means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP.
“
Capitalized
Software Expenditures
”
means,
for any period, the aggregate of all expenditures (whether paid in cash or
accrued as liabilities) by a Person and its Restricted Subsidiaries during
such
period in respect of purchased software or internally developed software and
software enhancements that, in conformity with GAAP, are or are required to
be
reflected as capitalized costs on the consolidated balance sheet of a Person
and
its Restricted Subsidiaries.
“
Cash
Equivalents
”
means:
(1)
United
States dollars;
(2)
euro
or
any national currency of any participating member state of the EMU or such
local
currencies held by the Issuer and its Restricted Subsidiaries from time to
time
in the ordinary course of business;
(3)
securities
issued or directly and fully and unconditionally guaranteed or insured by the
U.S. government (or any agency or instrumentality thereof the securities of
which are unconditionally guaranteed as a full faith and credit obligation of
the U.S. government) with maturities of 24 months or less from the date of
acquisition;
(4)
certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities
not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus of not less than $500.0 million
in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent
as
of the date of determination) in the case of non-U.S. banks;
(5)
repurchase
obligations for underlying securities of the types described in clauses
(3) and (4) entered into with any financial institution meeting the
qualifications specified in clause (4) above;
(6)
commercial
paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof;
(7)
marketable
short-term money market and similar securities having a rating of at least
P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither
Moody’s nor S&P shall be rating such obligations, an equivalent rating from
another Rating Agency), and in each case maturing within 24 months after
the date of creation thereof;
(8)
investment
funds investing 95% of their assets in securities of the types described in
clauses (1) through (7) above;
(9)
readily
marketable direct obligations issued by any state, commonwealth or territory
of
the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moody’s or S&P with maturities
of 24 months or less from the date of acquisition;
(10)
Indebtedness
or Preferred Stock issued by Persons with a rating of A or higher from S&P
or A2 or higher from Moody’s with maturities of 24 months or less from the
date of acquisition; and
(11)
Investments
with average maturities of 24 months or less from the date of acquisition in
money market funds rated AAA- (or the equivalent thereof) or better by S&P
or Aaa3 (or the equivalent thereof) or better by Moody’s.
Notwithstanding
the foregoing, Cash Equivalents shall include amounts denominated in currencies
other than those set forth in clauses (1) and (2) above;
provided
that
such amounts are
converted
into any currency listed in clauses (1) and (2) as promptly as
practicable and in any event within ten Business Days following the receipt
of
such amounts.
"
Cash
Interest
"
means
the portion of interest due on the Notes which the Issuer elects to pay in
cash.
“
Change
of Control
”
means
the occurrence of any of the following:
(1)
the
sale,
lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries, taken as
a
whole, to any Person other than a Permitted Holder; or
(2)
the
Issuer becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or
otherwise) of the acquisition by any Person or group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of acquiring,
holding or disposing of securities (within the meaning of Rule 13d-5(b)(1)
under the Exchange Act or any successor provision), other than the Permitted
Holders, in a single transaction or in a series of related transactions, by
way
of merger, consolidation or other business combination or purchase of beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision) of 50% or more of the total voting power of the Voting
Stock of the Issuer or any of its direct or indirect parent companies holding
directly or indirectly 100% of the total voting power of the Voting Stock of
the
Issuer.
“
Clearstream
”
means
Clearstream Banking, Société Anonyme.
“
Code
”
means
the Internal Revenue Code of 1986, as amended, or any successor
thereto.
“
Consolidated
Depreciation and Amortization Expense
”
means
with respect to any Person for any period, the total amount of depreciation
and
amortization expense, including the amortization of deferred financing fees,
debt issuance costs, commissions, fees and expenses and Capitalized Software
Expenditures, of such Person and its Restricted Subsidiaries for such period
on
a consolidated basis and otherwise determined in accordance with
GAAP.
“
Consolidated
Interest Expense
”
means,
with respect to any Person for any period, without duplication, the sum
of:
(1)
consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue
discount resulting from the issuance of Indebtedness at less than par,
(b) all commissions, discounts and other fees and charges owed with respect
to letters of credit or bankers’ acceptances, (c) non-cash interest
payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of Hedging Obligations or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to
interest rate Hedging Obligations with respect to Indebtedness, and excluding
(u) accretion or accrual of discounted liabilities not constituting
Indebtedness, (v) any expense resulting from the discounting of any
Indebtedness in connection with the application of recapitalization accounting
or, if applicable, purchase accounting, (w) any Special Interest and any
comparable “additional interest” with respect to other securities,
(x) amortization of deferred
financing
fees, debt issuance costs, commissions, fees and expenses, (y) any
expensing of bridge, commitment and other financing fees and
(z) commissions,
discounts,
yield and other fees and charges (including any interest expense) related
to any
Receivables Facility); plus
(2)
consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued; less
(3)
interest
income for such period.
For
purposes of this definition, interest on a Capitalized Lease Obligation shall
be
deemed to accrue at an interest rate reasonably determined by such Person to
be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP.
“
Consolidated
Leverage Ratio
”
as
of
any date of determination, means the ratio of (1) Consolidated Total
Indebtedness of the Issuer and its Restricted Subsidiaries as of the end of
the
most recent fiscal period for which internal financial statements are available
immediately preceding the date on which such event for which such calculation
is
being made shall occur to (2) the Issuer's EBITDA for the most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such event for which such calculation
is
being made shall occur, in each case with such pro forma adjustments to
Consolidated Total Indebtedness and EBITDA as are appropriate and consistent
with the pro forma adjustment provisions set forth in the definition of "Fixed
Charge Coverage Ratio."
“
Consolidated
Net Income
”
means,
with respect to any Person for any period, the aggregate of the Net Income
of
such Person for such period, on a consolidated basis, and otherwise determined
in accordance with GAAP;
provided
,
however
,
that,
without duplication,
(1)
any
after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating
to
the Transactions to the extent incurred on or prior to May 1, 2008), severance,
relocation costs, consolidation and closing costs, integration and facilities
opening costs, business optimization costs, transition costs, restructuring
costs, signing, retention or completion bonuses, and curtailments or
modifications to pension and post-retirement employee benefit plans shall be
excluded,
(2)
the
cumulative effect of a change in accounting principles during such period shall
be excluded,
(3)
any
after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed,
abandoned, transferred, closed or discontinued operations shall be
excluded,
(4)
any
after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than in the
ordinary course of business, as determined in good faith by the Issuer, shall
be
excluded,
(5)
the
Net
Income for such period of any Person that is an Unrestricted Subsidiary shall
be
excluded, and, solely for the purpose of determining the amount available for
Restricted Payments under clause 3(a) of Section 4.07(a) hereof, the Net Income
for such period of any Person that is not a Subsidiary or that is accounted
for
by the equity method of accounting shall be excluded;
provided
that
Consolidated Net Income of the Issuer shall be increased by the
amount
of
dividends or distributions or other payments that are actually paid in cash
(or
to the extent converted into cash) to the Issuer or a Restricted
Subsidiary
thereof in respect of such period, to the extent not already included
therein,
(6)
solely
for the purpose of determining the amount available for Restricted Payments
under clause (3)(a) of Section 4.07(a) hereof, the Net Income for such
period of any Restricted Subsidiary (other than any Guarantor) shall be excluded
to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of its Net Income is not at the
date
of determination wholly permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of the
terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule, or governmental regulation applicable to that Restricted Subsidiary or
its
stockholders, unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived;
provided
that
Consolidated Net Income of the Issuer will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or
to
the extent converted into cash) or Cash Equivalents to the Issuer or a
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,
(7)
effects
of adjustments (including the effects of such adjustments pushed down to the
Issuer and its Restricted Subsidiaries) in the property, equipment, inventory,
software and other intangible assets, deferred revenue and debt line items
in
such Person’s consolidated financial statements pursuant to GAAP resulting from
the application of recapitalization accounting or, if applicable, purchase
accounting in relation to the Transaction or any consummated acquisition or
the
amortization or write-off of any amounts thereof, net of taxes, shall be
excluded,
(8)
any
after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments shall be
excluded,
(9)
any
impairment charge or asset write-off, including, without limitation, impairment
charges or asset write-offs related to intangible assets, long-lived assets
or
investments in debt and equity securities, in each case, pursuant to GAAP and
the amortization of intangibles arising pursuant to GAAP shall be
excluded,
(10)
any
non-cash compensation expense recorded from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights, and any cash
charges associated with the rollover, acceleration or payout of Equity Interests
by management of the Issuer or any of its direct or indirect parent companies
in
connection with the Transactions, shall be excluded,
(11)
any
fees
and expenses incurred during such period, or any amortization thereof for such
period, in connection with any acquisition, Investment, Asset Sale, issuance
or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction
or amendment or modification of any debt instrument (in each case, including
any
such transaction consummated prior to the Issue Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction shall be
excluded,
(12)
accruals
and reserves that are established or adjusted within twelve months after the
Issue Date that are so required to be established as a result of the
Transactions in accordance
with
GAAP, or
changes as a result of adoption or modification of accounting policies, shall
be
excluded, and
(13)
to
the
extent covered by insurance and actually reimbursed, or, so long as the Issuer
has made a determination that there exists reasonable evidence that such amount
will in fact be reimbursed by the insurer and only to the extent that such
amount is (a) not denied by the applicable carrier in writing within 180
days and (b) in fact reimbursed within 365 days of the date of such
evidence (with a deduction for any amount so added back to the extent not so
reimbursed within 365 days), expenses with respect to liability or casualty
events or business interruption shall be excluded.
Notwithstanding
the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(3)(d) of Section 4.07(a) hereof), there shall be excluded from
Consolidated Net Income any income arising from any sale or other disposition
of
Restricted Investments made by the Issuer and its Restricted Subsidiaries,
any
repurchases and redemptions of Restricted Investments from the Issuer and its
Restricted Subsidiaries, any repayments of loans and advances which constitute
Restricted Investments by the Issuer or any of its Restricted Subsidiaries,
any
sale of the stock of an Unrestricted Subsidiary or any distribution or dividend
from an Unrestricted Subsidiary, in each case only to the extent such amounts
increase the amount of Restricted Payments permitted under clause (3)(d) of
Section 4.07(a) hereof.
“
Consolidated
Total Indebtedness
”
means,
as of any date of determination, an amount equal to the sum of (1) the
aggregate amount of all outstanding Indebtedness of the Issuer and its
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness
for
borrowed money, Obligations in respect of Capitalized Lease Obligations and
debt
obligations evidenced by promissory notes and similar instruments (and
excluding, for the avoidance of doubt, all obligations relating to Receivables
Facilities) and (2) the aggregate amount of all outstanding Disqualified
Stock of the Issuer and all Preferred Stock of its Restricted Subsidiaries
on a
consolidated basis, with the amount of such Disqualified Stock and Preferred
Stock equal to the greater of their respective voluntary or involuntary
liquidation preferences and maximum fixed repurchase prices, in each case
determined on a consolidated basis in accordance with GAAP. For purposes hereof,
the “maximum fixed repurchase price” of any Disqualified Stock or Preferred
Stock that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock or Preferred Stock as
if
such Disqualified Stock or Preferred Stock were purchased on any date on which
Consolidated Total Indebtedness shall be required to be determined pursuant
to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Stock or Preferred Stock, such fair market value
shall be determined reasonably and in good faith by the Issuer.
“
Contingent
Obligations
”
means,
with respect to any Person, any obligation of such Person guaranteeing any
leases, dividends or other obligations that do not constitute Indebtedness
(“
primary
obligations
”)
of any
other Person (the “
primary
obligor
”)
in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent,
(1)
to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,
(2)
to
advance or supply funds:
(a)
for
the
purchase or payment of any such primary obligation, or
(b)
to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, or
(3)
to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect
thereof.
“
Corporate
Trust Office of the Trustee
”
shall
be at the address of the Trustee specified in Section 14.02 hereof or such
other
address as to which the Trustee may give notice to the Holders and the
Issuer.
“
Credit
Facilities
”
means,
with respect to the Issuer or any of its Restricted Subsidiaries, one or more
debt facilities, including the Senior Credit Facilities, or other financing
arrangements (including, without limitation, commercial paper facilities or
indentures) providing for revolving credit loans, term loans, letters of credit
or other long-term indebtedness, including any notes, mortgages, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals,
restatements or refundings thereof and any indentures, notes, debentures or
credit facilities or commercial paper facilities that replace, refund or
refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility
or
indenture that increases the amount permitted to be borrowed thereunder or
alters the maturity thereof (
provided
that
such increase in borrowings is permitted under Section 4.09 hereof) or adds
Restricted Subsidiaries as additional borrowers or guarantors thereunder and
whether by the same or any other agent, lender or group of lenders.
“
Custodian
”
means
the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“
Default
”
means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
“
Definitive
Note
”
means
a
certificated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06(c) hereof, substantially in the form of
Exhibit A
hereto,
except that such Note shall not bear the Global Note Legend and shall not have
the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.
“
Depositary
”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03 hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as Depositary hereunder
and having become such pursuant to the applicable provision of this
Indenture.
“
Designated
Non-cash Consideration
”
means
the fair market value of non-cash consideration received by the Issuer or a
Restricted Subsidiary in connection with an Asset Sale that is so designated
as
Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting
forth the basis of such valuation, executed by the principal financial officer
of the Issuer, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of or collection on such Designated Non-cash
Consideration.
“
Designated
Preferred Stock
”
means
Preferred Stock of the Issuer or any parent corporation thereof (in each case
other than Disqualified Stock) that is issued for cash (other than to a
Restricted Subsidiary or an employee stock ownership plan or trust established
by the Issuer or any of its
Subsidiaries)
and is so designated as Designated Preferred Stock, pursuant to an Officer’s
Certificate executed by the principal financial officer of the Issuer or the
applicable parent corporation thereof, as the case may be, on the issuance
date
thereof, the cash proceeds of which are excluded from the calculation set forth
in clause (3) of Section 4.07(a) hereof.
“
Designated
Senior Indebtedness
”
means:
(1)
any
Indebtedness outstanding under the Senior Credit Facilities;
(2)
any
Indebtedness outstanding under the Senior Indenture; and
(3)
any
other
Senior Indebtedness permitted under this Indenture that, at the date of
determination, has an aggregate principal amount outstanding
of
at least
$35.0 million and is specifically designated by the issuer thereof in the
instrument evidencing or governing such Senior Indebtedness as “Designated
Senior
Indebtedness”
for
purposes of this Indenture.
“
Disqualified
Stock
”
means,
with respect to any Person, any Capital Stock of such Person which, by its
terms, or by the terms of any security into which it is convertible or for
which
it is putable or exchangeable, or upon the happening of any event, matures
or is
mandatorily redeemable (other than solely as a result of a change of control
or
asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (other than solely as a result of a change
of control or asset sale), in whole or in part, in each case prior to the date
91 days after the earlier of the maturity date of the Notes or the date the
Notes are no longer outstanding;
provided
,
however
,
that if
such Capital Stock is issued to any plan for the benefit of employees of the
Issuer or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Issuer or its Subsidiaries in order to satisfy
applicable statutory or regulatory obligations.
“
EBITDA
”
means,
with respect to any Person for any period, the Consolidated Net Income of such
Person for such period
(1)
increased
(without duplication) by:
(a)
provision
for taxes based on income or profits or capital gains, including, without
limitation, foreign, federal, state, franchise and similar taxes and foreign
withholding taxes (including penalties and interest related to such taxes or
arising from tax examinations) of such Person paid or accrued during such period
deducted (and not added back) in computing Consolidated Net Income in such
period;
plus
(b)
Fixed
Charges of such Person for such period (including (x) net losses on Hedging
Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk and (y) costs of surety bonds in connection with
financing activities, in each case, to the extent included in Fixed Charges),
together with items excluded from the definition of “Consolidated Interest
Expense” pursuant to clauses (1)(u), (v), (w), (x), (y) and (z) of the
definition thereof, and, in each such case, to the extent the same were deducted
(and not added back) in calculating such Consolidated Net Income in such period;
plus
(c)
Consolidated
Depreciation and Amortization Expense of such Person for such period to the
extent the same was deducted (and not added back) in computing Consolidated
Net
Income in such period;
plus
(d)
any
expenses or charges (other than depreciation or amortization expense) related
to
any Equity Offering, Permitted Investment, acquisition, disposition,
recapitalization or the incurrence of Indebtedness permitted to be incurred
by
this Indenture (including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to the offering of the
Notes and any Credit Facilities and (ii) any amendment or other
modification of the Notes, and, in each case, deducted (and not added back)
in
computing Consolidated Net Income in such period;
plus
(e)
the
amount of any restructuring charge or reserve deducted (and not added back)
in
such period in computing Consolidated Net Income, including any one-time costs
incurred in connection with acquisitions after the Issue Date and costs related
to the closure and/or consolidation of facilities;
plus
(f)
any
other
non-cash charges, including any write-offs or write-downs, reducing Consolidated
Net Income for such period (
provided
that if
any such non-cash charges represent an accrual or reserve for potential cash
items in any future period, the cash payment in respect thereof in such future
period shall be subtracted from EBITDA to such extent, and excluding
amortization of a prepaid cash item that was paid in a prior period);
plus
(g)
the
amount of any minority interest expense consisting of income attributable to
minority equity interests of third parties deducted (and not added back) in
such
period in calculating Consolidated Net Income in such period;
plus
(h)
the
amount of management, monitoring, consulting and advisory fees and related
expenses paid in such period to the Investors to the extent otherwise permitted
under Section 4.11 hereof;
plus
(i)
the
amount of net cost savings projected by the Issuer in good faith to be realized
as a result of specified actions taken or to be taken (calculated on a
pro
forma
basis as
though such cost savings had been realized on the first day of such period),
net
of the amount of actual benefits realized during such period from such actions;
provided
that
(w) such cost savings are reasonably identifiable and factually
supportable, (x) such actions have been taken or are to be taken within 12
months after the date of determination to take such action, (y) no cost savings
shall be added pursuant to this clause (i) to the extent duplicative of any
expenses or charges relating to such cost savings that are included in clause
(e) above with respect to such period and (z) the aggregate amount of cost
savings added pursuant to this clause (i) shall not exceed $25.0 million for
any
four consecutive quarter period (which adjustments may be incremental to
pro
forma
adjustments made pursuant to the second paragraph of the definition of “Fixed
Charge Coverage Ratio”);
plus
(j)
the
amount of loss on sales of receivables and related assets to the Receivables
Subsidiary in connection with a Receivables Facility;
plus
(k)
an
amount
equal to the impact on cost of goods sold and operating profit of incremental
markdowns taken as a result of Project Alpha as described in footnote (5)(a)
of
“Offering Circular Summary—Summary Historical and Pro Forma Consolidated
Financial and Other Data” in the Offering Circular;
provided
that
this clause (k) shall not apply to any quarterly period beginning after February
1, 2008;
plus
(l)
any
expenses associated with Project Alpha inventory and real estate initiatives
as
described in footnote (5)(b) of “Offering Circular Summary—Summary Historical
and Pro Forma Consolidated Financial and Other Data” in the Offering Circular;
provided
that
this clause (l) shall not apply to any quarterly period beginning after February
1, 2008;
plus
(m)
any
costs
or expense incurred by the Issuer or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement or any stock subscription or shareholder agreement,
to
the extent that such cost or expenses are funded with cash proceeds contributed
to the capital of the Issuer or net cash proceeds of an issuance of Equity
Interests of the Issuer (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in
clause (3) of Section 4.07(a) hereof;
(2)
decreased
by (without duplication) non-cash gains increasing Consolidated Net Income
of
such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that
reduced EBITDA in any prior period; and
(3)
increased
or decreased by (without duplication):
(a)
any
net
gain or loss resulting in such period from Hedging Obligations and the
application of Statement of Financial Accounting Standards No. 133;
plus
or
minus
,
as
applicable, and
(b)
any
net
gain or loss resulting in such period from currency translation gains or losses
related to currency remeasurements of Indebtedness (including any net loss
or
gain resulting from Hedging Obligations for currency exchange
risk).
“
EMU
”
means
the economic and monetary union as contemplated in the Treaty on European
Union.
“
Equity
Interests
”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock, but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock.
“
Equity
Offering
”
means
any public or private sale of common stock or Preferred Stock of the Issuer
or
any of its direct or indirect parent companies (excluding Disqualified Stock),
other than:
(1)
public
offerings with respect to the Issuer’s or any direct or indirect parent
company’s common stock registered on Form S-8;
(2)
issuances
to any Subsidiary of the Issuer; and
(3)
any
such
public or private sale that constitutes an Excluded Contribution.
“
euro
”
means
the single currency of participating member states of the EMU.
“
Euroclear
”
means
Euroclear S.A./N.V., as operator of the Euroclear system.
“
Exchange
Act
”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“
Exchange
Notes
”
means
any notes issued in exchange for the Notes pursuant to Section 2.06(f)
hereof.
“
Exchange
Offer
”
has
the
meaning set forth in any Registration Rights Agreement.
“
Exchange
Offer Registration Statement
”
has
the
meaning set forth in the Registration Rights Agreement.
“
Excluded
Contribution
”
means
net cash proceeds, marketable securities or Qualified Proceeds received by
the
Issuer after the Issue Date from:
(1)
contributions
to its common equity capital, and
(2)
the
sale
(other than to a Subsidiary of the Issuer or to any management equity plan
or
stock option plan or any other management or employee benefit plan or agreement
of the Issuer) of Capital Stock (other than Disqualified Stock and Designated
Preferred Stock) of the Issuer,
in
each
case designated as Excluded Contributions pursuant to an Officer’s Certificate
executed by the principal financial officer of the Issuer on the date such
capital contributions are made or the date such Equity Interests are sold,
as
the case may be, which are excluded from the calculation set forth in clause
(3) of Section 4.07(a) hereof.
“
Fixed
Charge Coverage Ratio
”
means,
with respect to any Person for any period, the ratio of EBITDA of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees,
redeems, retires or extinguishes any Indebtedness (other than Indebtedness
incurred under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) or issues or redeems Disqualified
Stock or Preferred Stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “
Fixed
Charge Coverage Ratio Calculation Date
”),
then
the Fixed Charge Coverage Ratio shall be calculated giving
pro
forma
effect
to such incurrence, assumption, guarantee, redemption, retirement or
extinguishment of Indebtedness, or such issuance or redemption of Disqualified
Stock or Preferred Stock, as if the same had occurred on the first day of the
applicable four-quarter period.
For
purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined
in
accordance with GAAP) that have been made by the Issuer or any of its Restricted
Subsidiaries during the four-quarter reference period or subsequent to such
reference period and on or prior to or simultaneously with the Fixed Charge
Coverage Ratio Calculation Date shall be calculated on a
pro
forma
basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred
on
the
first day of the four-quarter reference period. If, since the beginning of
such
period, any Person that subsequently became a Restricted Subsidiary or was
merged with or into the Issuer or any of its Restricted Subsidiaries since
the
beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or disposed operation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving
pro
forma
effect
thereto for such period as if such Investment, acquisition, disposition,
merger,
consolidation or disposed operation had occurred on the first day of the
applicable four-quarter period.
For
purposes of this definition, whenever
pro
forma
effect
is to be given to a transaction, the
pro
forma
calculations shall be made in good faith by a responsible financial or
accounting officer of the Issuer. If any Indebtedness bears a floating rate
of
interest and is being given
pro
forma
effect,
the interest on such Indebtedness shall be calculated as if the rate in effect
on the Fixed Charge Coverage Ratio Calculation Date had been the applicable
rate
for the entire period (taking into account any Hedging Obligations applicable
to
such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Issuer to be the rate of interest implicit in
such
Capitalized Lease Obligation in accordance with GAAP. For purposes of making
the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a
pro
forma
basis
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period except as set forth in the first paragraph of
this
definition. Interest on Indebtedness that may optionally be determined at an
interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate or other rate shall be deemed to have been based upon
the
rate actually chosen, or, if none, then based upon such optional rate chosen
as
the Issuer may designate.
“
Fixed
Charges
”
means,
with respect to any Person for any period, the sum of:
(1)
Consolidated
Interest Expense of such Person for such period;
(2)
all
cash
dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period;
and
(3)
all
cash
dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such
period.
“
Foreign
Subsidiary
”
means,
with respect to any Person, any Restricted Subsidiary of such Person that is
not
organized or existing under the laws of the United States, any state thereof
or
the District of Columbia and any Restricted Subsidiary of such Foreign
Subsidiary.
“
GAAP
”
means
generally accepted accounting principles in the United States which are in
effect on the Issue Date.
“
General
Credit Facility
”
means
the credit agreement to be entered into as of the Issue Date by and among the
Issuer, the lenders party thereto in their capacities as lenders thereunder
and
Citicorp North America, Inc., as Administrative Agent, including any guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and any amendments, supplements, modifications, extensions, renewals,
restatements, refundings or refinancings thereof and any indentures, notes,
debentures or credit facilities or commercial paper facilities with banks or
other institutional lenders or investors that replace, refund or refinance
any
part of the loans, notes, other credit facilities or commitments thereunder,
including any such replacement, refunding or refinancing facility or indenture
that
increases the amount borrowable thereunder or alters the maturity thereof
(
provided
that
such increase in borrowings is permitted under Section 4.10
hereof).
“
Global
Note Legend
”
means
the legend set forth in Section 2.06(g)(ii) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
“
Global
Notes
”
means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes, substantially in the form of
Exhibit
A
hereto
issued in accordance with Section 2.01, 2.06(b), 2.06(d) or 2.06(f)
hereof.
“
Government
Securities
”
means
securities that are:
(1)
direct
obligations of the United States of America for the timely payment of which
its
full faith and credit is pledged; or
(2)
obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which
is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America,
which,
in
either case, are not callable or redeemable at the option of the issuers
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to
any such Government Securities or a specific payment of principal of or interest
on any such Government Securities held by such custodian for the account of
the
holder of such depository receipt;
provided
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from
any amount received by the custodian in respect of the Government Securities
or
the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.
“
guarantee
”
means
a
guarantee (other than by endorsement of negotiable instruments for collection
in
the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all
or
any part of any Indebtedness or other obligations.
“
Guarantee
”
means
the guarantee by any Guarantor of the Issuer’s Obligations under this
Indenture.
“
Guarantor
”
means,
each Restricted Subsidiary that Guarantees the Notes in accordance with the
terms of this Indenture.
“
Hedging
Obligations
”
means,
with respect to any Person, the obligations of such Person under any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar
agreement, foreign exchange contract, currency swap agreement or similar
agreement providing for the transfer or mitigation of interest rate or currency
risks either generally or under specific contingencies.
“
Holder
”
means
the Person in whose name a Note is registered on the Registrar’s
books.
“
Indebtedness
”
means,
with respect to any Person, without duplication:
(1)
any
indebtedness (including principal and premium) of such Person, whether or not
contingent:
(a)
in
respect of borrowed money;
(b)
evidenced
by bonds, notes, debentures or similar instruments or letters of credit or
bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);
(c)
representing
the balance deferred and unpaid of the purchase price of any property (including
Capitalized Lease Obligations), except (i) any such balance that constitutes
a
trade payable or similar obligation to a trade creditor, in each case accrued
in
the ordinary course of business and (ii) any earn-out obligations until such
obligation becomes a liability on the balance sheet of such Person in accordance
with GAAP; or
(d)
representing
any Hedging Obligations;
if
and to
the extent that any of the foregoing Indebtedness (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP;
(2)
to
the
extent not otherwise included, any obligation by such Person to be liable for,
or to pay, as obligor, guarantor or otherwise on, the obligations of the type
referred to in clause (1) of a third Person (whether or not such items would
appear upon the balance sheet of the such obligor or guarantor), other than
by
endorsement of negotiable instruments for collection in the ordinary course
of
business; and
(3)
to
the
extent not otherwise included, the obligations of the type referred to in clause
(1) of a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;
provided
,
however
,
that
notwithstanding the foregoing, Indebtedness shall be deemed not to include
(a) Contingent Obligations incurred in the ordinary course of business or
(b) obligations under or in respect of Receivables Facilities.
“
Indenture
”
means
this Indenture, as amended or supplemented from time to time.
“
Independent
Financial Advisor
”
means
an accounting, appraisal, investment banking firm or consultant to Persons
engaged in Similar Businesses of nationally recognized standing that is, in
the
good faith judgment of the Issuer, qualified to perform the task for which
it
has been engaged.
“
Indirect
Participant
”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“
Initial
Notes
”
has
the
meaning set forth in the recitals hereto.
“
Initial
Purchasers
”
means
Goldman, Sachs & Co., Citigroup Global Markets Inc., Lehman Brothers and
Wachovia Capital Markets, LLC.
“
Insolvency
or Liquidation Proceeding
”
means:
(1)
any
case
commenced by or against the Issuer or any Guarantor under any Bankruptcy Law
for
the relief of debtors, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities
of
the Issuer or any Guarantor, any receivership or assignment for the benefit
of
creditors relating to the Issuer or any Guarantor or any similar case or
proceeding relative to the Issuer or any Guarantor or its creditors, as such,
in
each case whether or not voluntary;
(2)
any
liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Issuer or any Guarantor, in each case whether or not
voluntary and whether or not involving bankruptcy or insolvency; or
(3)
any
other
proceeding of any type or nature in which substantially all claims of creditors
of the Issuer or any Guarantor are determined and any payment or distribution
is
or may be made on account of such claims.
“
Interest
Payment Date
”
means
January 15 and July 15 of each year to stated maturity.
“
Investment
Grade Rating
”
means
a
rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P, or an equivalent rating by any other Rating
Agency.
“
Investment
Grade Securities
”
means:
(1)
securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash
Equivalents);
(2)
debt
securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the
Issuer and its Subsidiaries;
(3)
investments
in any fund that invests exclusively in investments of the type described in
clauses (1) and (2) which fund may also hold immaterial amounts of cash pending
investment or distribution; and
(4)
corresponding
instruments in countries other than the United States customarily utilized
for
high quality investments.
“
Investments
”
means,
with respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the form of loans (including guarantees), advances
or
capital contributions (excluding accounts receivable, trade credit, advances
to
customers, commissions, travel and similar advances to officers and employees,
in each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by
GAAP
to be classified on the balance sheet (excluding the footnotes) of the Issuer
in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. For
purposes of the definition of “Unrestricted Subsidiary” and Section 4.07
hereof:
(1)
“Investments”
shall include the portion (proportionate to the Issuer’s equity interest in such
Subsidiary) of the fair market value of the net assets of a Subsidiary of the
Issuer at the time that such Subsidiary is designated an Unrestricted
Subsidiary;
provided
,
however
,
that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer
shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in an amount (if positive) equal to:
(a)
the
Issuer’s “Investment” in such Subsidiary at the time of such redesignation;
less
(b)
the
portion (proportionate to the Issuer’s equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and
(2)
any
property transferred to or from an Unrestricted Subsidiary shall be valued
at
its fair market value at the time of such transfer, in each case fair market
value as determined in good faith by the Issuer.
“
Investors
”
means
Kohlberg Kravis Roberts & Co. L.P., GS Capital Partners VI Fund, L.P.
and funds managed by Citigroup Private Equity LP, and each of their respective
Affiliates but not including, however, any portfolio companies of any of the
foregoing.
“
Issue
Date
”
means
July 6, 2007.
“
Issuer
”
has
the
meaning set forth in the recitals hereto;
provided
that
when used in the context of determining the fair market value of an asset or
liability under this Indenture, other than in calculating the ABL Facility
Cap,
“Issuer” shall be deemed to mean the board of directors of the Issuer when the
fair market value is equal to or in excess of $50.0 million (unless otherwise
expressly stated).
“
Issuer
Order
”
means
a
written request or order signed on behalf of the Issuer by an Officer of the
Issuer, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Issuer, and
delivered to the Trustee.
“
Legal
Holiday
”
means
a
Saturday, a Sunday or a day on which commercial banking institutions are not
required to be open in the State of New York or the city in which the Corporate
Trust Office of the Trustee is located.
“
Letter
of Transmittal
”
means
the letter of transmittal to be prepared by the Issuer and sent to all Holders
of the Notes for use by such Holders in connection with the Exchange
Offer.
“
Lien
”
means,
with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority or encumbrance
of
any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction;
provided
that in
no event shall an operating lease be deemed to constitute a Lien.
“
Moody’s
”
means
Moody’s Investors Service, Inc. and any successor to its rating agency
business.
“
Net
Income
”
means,
with respect to any Person, the net income (loss) of such Person, determined
in
accordance with GAAP and before any reduction in respect of Preferred Stock
dividends.
“
Net
Proceeds
”
means
the aggregate cash proceeds received by the Issuer or any of its Restricted
Subsidiaries in respect of any Asset Sale, including any cash received upon
the
sale or other disposition of any Designated Non-cash Consideration received
in
any Asset Sale, net of the direct costs relating to such Asset Sale and the
sale
or disposition of such Designated Non-cash Consideration, including legal,
accounting and investment banking fees, and brokerage and sales commissions,
any
relocation expenses incurred as a result thereof, taxes paid or payable as
a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied
to
the repayment of principal, premium, if any, and interest on Senior Indebtedness
required (other than required by clause (1) of Section 4.10(b) hereof) to
be paid as a result of such transaction and any deduction of appropriate amounts
to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve
in accordance with GAAP against any liabilities associated with the asset
disposed of in such transaction and retained by the Issuer or any of its
Restricted Subsidiaries after such sale or other disposition thereof, including
pension and other post-employment benefit liabilities and liabilities related
to
environmental matters or against any indemnification obligations associated
with
such transaction.
“
Non
U.S. Person
”
means
a
Person who is not a U.S. Person.
“
Notes
”
means
the Initial Notes and more particularly means any Note authenticated and
delivered under this Indenture. For all purposes of this Indenture, the term
“Notes” shall also include any Additional Notes that may be issued under a
supplemental indenture. For purposes of this Indenture, all references to Notes
to be issued or authenticated upon transfer, replacement or exchange shall
be
deemed to refer to Notes of the applicable series.
“
Obligations
”
means
any principal, interest (including any interest accruing subsequent to the
filing of a petition in bankruptcy, reorganization or similar proceeding at
the
rate provided for in the documentation with respect thereto, whether or not
such
interest is an allowed claim under applicable state, federal or foreign law),
premium, penalties, fees, indemnifications, reimbursements (including
reimbursement obligations with respect to letters of credit and bankers’
acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any
Indebtedness.
“
Offering
Circular
”
means
the offering circular, dated June 28, 2007, relating to the sale of the Initial
Notes.
“
Officer
”
means
the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Issuer.
“
Officer’s
Certificate
”
means
a
certificate signed on behalf of the Issuer by an Officer of the Issuer, who
must
be the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Issuer.
“
OID
Legend
”
means
the legend set forth in Section 2.06(g)(iii) hereof to be placed on all Notes
issued under this Indenture.
“
Opinion
of Counsel
”
means
a
written opinion from legal counsel who is acceptable to the Trustee. The counsel
may be an employee of or counsel to the Issuer or the Trustee.
“
Partial
PIK Interest
”
has
the
meaning set forth in Section 2 of the Notes.
“
Participant
”
means,
with respect to the Depositary, Euroclear or Clearstream, a Person who has
an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
“
Permitted
Asset Swap
”
means
the concurrent purchase and sale or exchange of Related Business Assets or
a
combination of Related Business Assets and cash or Cash Equivalents between
the
Issuer or any of its Restricted Subsidiaries and another Person;
provided
that any
cash or Cash Equivalents received must be applied in accordance with Section
4.10 hereof.
“
Permitted
Holders
”
means
each of the Investors, members of management of the Issuer (or its direct or
indirect parent) and any assignees of the equity commitments of the Investors
on
the Issue Date who are, or will be, pursuant to the agreements described under
the captions “Management — Equity Investment by Senior Management Participants”
and “—Equity Investment by Other Management Participants” in the Offering
Circular, that are holders of Equity Interests of the Issuer (or any of its
direct or indirect parent companies) and any group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any
successor provision) of which any of the foregoing are members;
provided
that, in
the case of such group and without giving effect to the existence of such group
or any other group, such Investors, members of management and assignees of
the
equity commitments of the Investors, collectively, have beneficial ownership
of
more than 50% of the total voting power of the Voting Stock of the Issuer or
any
of its direct or indirect parent companies.
“
Permitted
Investments
”
means:
(1)
any
Investment in the Issuer or any of its Restricted Subsidiaries;
(2)
any
Investment in cash and Cash Equivalents or Investment Grade
Securities;
(3)
any
Investment by the Issuer or any of its Restricted Subsidiaries in a Person
that
is engaged in a Similar Business if as a result of such Investment:
(a)
such
Person becomes a Restricted Subsidiary; or
(b)
such
Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Issuer or a Restricted
Subsidiary,
and,
in
each case, any Investment held by such Person;
provided
that
such Investment was not acquired by such Person in contemplation of such
acquisition, merger, consolidation or transfer;
(4)
any
Investment in securities or other assets not constituting cash, Cash Equivalents
or Investment Grade Securities and received in connection with an Asset Sale
made pursuant to the provisions described under Section 4.10 hereof or any
other
disposition of assets not constituting an Asset Sale;
(5)
any
Investment existing on the Issue Date;
(6)
any
Investment acquired by the Issuer or any of its Restricted
Subsidiaries:
(a)
in
exchange for any other Investment or accounts receivable held by the Issuer
or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable; or
(b)
as
a
result of a foreclosure by the Issuer or any of its Restricted Subsidiaries
with
respect to any secured Investment or other transfer of title with respect to
any
secured Investment in default;
(7)
Hedging
Obligations permitted under clause (11) of Section 4.09(b)
hereof;
(8)
any
Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that
are at that time outstanding, not to exceed $50.0 million at the time of such
Investment (with the fair market value of each Investment being measured at
the
time made and without giving effect to subsequent changes in
value);
(9)
Investments
the payment for which consists of Equity Interests (exclusive of Disqualified
Stock) of the Issuer or any of its direct or indirect parent companies;
provided
,
however
,
that
such Equity Interests will not increase the amount available for Restricted
Payments under clause (3) of Section 4.07(a) hereof;
(10)
guarantees
of Indebtedness permitted under Section 4.09 hereof;
(11)
any
transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 4.11(b) hereof (except
transactions described in clauses (2), (5) and (9) of Section 4.11(b)
hereof);
(12)
Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;
(13)
additional
Investments having an aggregate fair market value, taken together with all
other
Investments made pursuant to this clause (13) that are at that time
outstanding (without giving effect to the sale of an Unrestricted Subsidiary
to
the extent the proceeds of such sale do not consist of cash or marketable
securities), not to exceed $100.0 million at the time of such Investment (with
the fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value);
(14)
Investments
relating to a Receivables Subsidiary that, in the good faith determination
of
the Issuer, are necessary or advisable to effect the ABL Facility or any
Receivables Facility, as the case may be;
(15)
advances
to, or guarantees of Indebtedness of, employees not in excess of
$10.0 million outstanding at any one time, in the aggregate;
(16)
loans
and
advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred
in
the
ordinary
course of business or consistent with past practices or to fund such Person’s
purchase of Equity Interests of the Issuer or any direct or indirect parent
company
thereof; and
(17)
Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment or the licensing or contribution of intellectual property pursuant
to
joint marketing arrangements with other Persons.
“
Permitted
Junior Securities
”
means:
(1)
Equity
Interests in the Issuer, any Guarantor or any direct or indirect parent of
the
Issuer; or
(2)
unsecured
debt securities that are subordinated to all Senior Indebtedness (and any debt
securities issued in exchange for Senior Indebtedness) to substantially the
same
extent as, or to a greater extent than, the Notes and the related Guarantees
are
subordinated to Senior Indebtedness under this Indenture;
provided
that the
term “Permitted Junior Securities” shall not include any securities distributed
pursuant to a plan of reorganization if the Indebtedness under the Senior Credit
Facilities is treated as part of the same class as the Notes for purposes of
such plan of reorganization;
provided
further
that to
the extent that any Senior Indebtedness of the Issuer outstanding on the date
of
consummation of any such plan of reorganization is not paid in full in cash
on
such date, the holders of any such Senior Indebtedness not so paid in full
in
cash have consented to the terms of such plan of reorganization.
“
Permitted
Liens
”
means,
with respect to any Person:
(1)
pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits
as
security for contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business;
(2)
Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each
case for sums not yet overdue for a period of more than 30 days or being
contested in good faith by appropriate proceedings or other Liens arising out
of
judgments or awards against such Person with respect to which such Person shall
then be proceeding with an appeal or other proceedings for review if adequate
reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;
(3)
Liens
for
taxes, assessments or other governmental charges not yet overdue for a period
of
more than 30 days or payable or subject to penalties for nonpayment or which
are
being contested in good faith by appropriate proceedings diligently conducted,
if adequate reserves with respect thereto are maintained on the books of such
Person in accordance with GAAP;
(4)
Liens
in
favor of issuers of performance and surety bonds or bid bonds or with respect
to
other regulatory requirements or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business;
(5)
minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as
to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred
in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use
in
the operation of the business of such Person;
(6)
Liens
securing Indebtedness permitted to be incurred pursuant to clauses (1), (5),
(13), (14) , (19) or (20) of Section 4.09(b) hereof;
provided
that
(a) Liens securing Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (14) relate only to Refinancing
Indebtedness that serves to refund or refinance Indebtedness, Disqualified
Stock
or Preferred Stock incurred under clause (5) or (13) of Section
4.09(b) hereof, (b) Liens securing Indebtedness permitted to be incurred
pursuant to clause (19) extend only to the assets of Foreign Subsidiaries,
(c) Liens securing Indebtedness permitted to be incurred pursuant to clause
(20) are solely on acquired property or the assets of the acquired entity,
as the case may be and (d) Liens securing Indebtedness, Disqualified Stock
or Preferred Stock permitted to be incurred pursuant to clause (5) of
Section 4.09(b) hereof extend only to the assets so financed, purchased,
constructed or improved;
(7)
Liens
existing on the Issue Date (other than Liens in favor of the lenders under
the
Senior Credit Facilities);
(8)
Liens
on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary;
provided
,
however
,
such
Liens are not created or incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary;
provided
,
further
,
however
,
that
such Liens may not extend to any other property owned by the Issuer or any
of
its Restricted Subsidiaries;
(9)
Liens
on
property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with
or into the Issuer or any of its Restricted Subsidiaries;
provided
,
however
,
that
such Liens are not created or incurred in connection with, or in contemplation
of, such acquisition;
provided
,
further
,
however
,
that
the Liens may not extend to any other property owned by the Issuer or any of
its
Restricted Subsidiaries;
(10)
Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing
to
the Issuer or another Restricted Subsidiary permitted to be incurred in
accordance with Section 4.09 hereof;
(11)
Liens
securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Indenture, secured by a Lien on the same property
securing such Hedging Obligations;
(12)
Liens
on
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
(13)
leases,
subleases, licenses or sublicenses granted to others in the ordinary course
of
business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure
any Indebtedness;
(14)
Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Issuer and its Restricted Subsidiaries
in
the ordinary course of business;
(15)
Liens
in
favor of the Issuer or any Guarantor;
(16)
Liens
on
equipment of the Issuer or any of its Restricted Subsidiaries granted in the
ordinary course of business;
(17)
Liens
on
accounts receivable and related assets incurred in connection with a Receivables
Facility;
(18)
Liens
to
secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements),
as a
whole or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (6), (7), (8) and (9);
provided
,
however
,
that
(a) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property), and (b) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (i) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (6),
(7),
(8) and (9) at the time the original Lien became a Permitted Lien
under this Indenture, and (ii) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement;
(19)
deposits
made in the ordinary course of business to secure liability to insurance
carriers;
(20)
other
Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $20.0 million at any one time
outstanding;
(21)
Liens
securing judgments for the payment of money not constituting an Event of Default
under clause (5) under Section 6.01(a) hereof so long as such Liens are
adequately bonded and any appropriate legal proceedings that may have been
duly
initiated for the review of such judgment have not been finally terminated
or
the period within which such proceedings may be initiated has not
expired;
(22)
Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the
ordinary course of business;
(23)
Liens
(i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code, or any comparable or successor provision, on items in the
course of collection, (ii) attaching to commodity trading accounts or other
commodity brokerage accounts incurred in the ordinary course of business, and
(iii) in favor of banking institutions arising as a matter of law
encumbering deposits (including the right of set-off) and which are within
the
general parameters customary in the banking industry;
(24)
Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.09 hereof;
provided
that
such Liens do not extend to any assets other than those that are the subject
of
such repurchase agreements;
(25)
Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft
or similar obligations incurred in the ordinary course of business of the Issuer
and its Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Issuer or any of its
Restricted Subsidiaries in the ordinary course of business;
(26)
Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes; and
(27)
Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale or purchase of goods entered into by the Issuer or
any
Restricted Subsidiary in the ordinary course of business.
For
purposes of this definition, the term “Indebtedness” shall be deemed to include
interest on such Indebtedness.
“
Person
”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“
PIK
Interest
”
has
the
meaning set forth in Section 2 of the Notes.
“
Plan
of Reorganization
”
means
any plan of reorganization, plan of liquidation, agreement for composition,
or
other type of plan of arrangement proposed in or in connection with any
Insolvency or Liquidation Proceeding.
“
Preferred
Stock
”
means
any Equity Interest with preferential rights of payment of dividends or upon
liquidation, dissolution or winding up.
“
Private
Placement Legend
”
means
the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes
issued under this Indenture, except where otherwise permitted by the provisions
of this Indenture.
“
Purchase
Money Obligations
”
means
any Indebtedness incurred to finance or refinance the acquisition, leasing,
construction or improvement of property (real or personal) or assets (other
than
Capital Stock), and whether acquired through the direct acquisition of such
property or assets, or otherwise.
“
QIB
”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“
Qualified
Proceeds
”
means
the fair value of assets that are used or useful in, or Capital Stock of any
Person engaged in, a Similar Business;
provided
that the
fair market value of any such assets or Capital Stock shall be determined by
the
Issuer in good faith.
“
Rating
Agencies
”
means
Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on
the Notes publicly available, a nationally recognized statistical rating agency
or agencies, as the case may be, selected by the Issuer which shall be
substituted for Moody’s or S&P or both, as the case may be.
“
Receivables
Collateral
”
means
all the assets pledged to the ABL Collateral Agent on behalf of the ABL Secured
Parties as security for the ABL Obligations.
“
Receivables
Facility
”
means
any of one or more receivables financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time, the
Obligations of which are non-recourse (except for customary representations,
warranties, covenants and indemnities made in connection with such facilities)
to the Issuer or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) pursuant to which the Issuer or any of its Restricted Subsidiaries
purports to sell its accounts receivable to either (a) a Person that is not
a
Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such
purchase by purporting to sell its accounts receivable to a Person that is
not a
Restricted Subsidiary or by borrowing from such Person or from another
Receivables Subsidiary that in turn funds itself by borrowing from such
Person.
“
Receivables
Fees
”
means
distributions or payments made directly or by means of discounts with respect
to
any accounts receivable or participation interest therein issued or sold in
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with any Receivables Facility.
“
Receivables
Subsidiary
”
means
any Subsidiary formed for the purpose of facilitating or entering into one
or
more Receivables Facilities, and in each case engages only in activities
reasonably related or incidental thereto.
“
Record
Date
”
for
the
interest or Special Interest, if any, payable on any applicable Interest Payment
Date means January 1 or July 1 (whether or not a Business Day) next preceding
such Interest Payment Date.
“
Registration
Rights Agreement
”
means
the Registration Rights Agreement related to the Notes, dated as of the Issue
Date, among the Issuer,
Dollar
General
the
Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Issuer, the Dollar
General and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the
Issuer or Dollar General to the purchasers of Additional Notes to register
such
Additional Notes under the Securities Act.
“
Regulation
S
”
means
Regulation S promulgated under the Securities Act.
“
Regulation
S Global Note
”
means
a
Global Note in the form of
Exhibit A
hereto
bearing the Global Note Legend, the OID Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee, that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Regulation
S.
“
Related
Business Assets
”
means
assets (other than cash or Cash Equivalents) used or useful in a Similar
Business;
provided
that any
assets received by the Issuer or a Restricted Subsidiary in exchange for assets
transferred by the Issuer or a Restricted Subsidiary will not be deemed to
be
Related
Business
Assets if they consist of securities of a Person, unless upon receipt of
the
securities of such Person, such Person would become a Restricted
Subsidiary.
“
Representative
”
means,
with respect to a person, any trustee, agent or representative (if any) for
an
issue of Senior Indebtedness of such Person.
“
Responsible
Officer
”
means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
“
Restricted
Definitive Note
”
means
a
Definitive Note bearing the Private Placement Legend.
“
Restricted
Global Note
”
means
a
Global Note bearing the Private Placement Legend.
“
Restricted
Investment
”
means
an Investment other than a Permitted Investment.
“
Restricted
Period
”
means
the 40-day distribution compliance period as defined in Regulation
S.
“
Restricted
Subsidiary
”
means,
at any time, any direct or indirect Subsidiary of the Issuer (including any
Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided
,
however
,
that
upon an Unrestricted Subsidiary’s ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted
Subsidiary.”
“
Rule
144
”
means
Rule 144 promulgated under the Securities Act.
“
Rule
144A
”
means
Rule 144A promulgated under the Securities Act.
“
Rule
903
”
means
Rule 903 promulgated under the Securities Act.
“
Rule
904
”
means
Rule 904 promulgated under the Securities Act.
“
S&P
”
means
Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.
“
Sale
and Lease-Back Transaction
”
means
any arrangement providing for the leasing by the Issuer or any of its Restricted
Subsidiaries of any real or tangible personal property, which property has
been
or is to be sold or transferred by the Issuer or such Restricted Subsidiary
to a
third Person in contemplation of such leasing.
“
SEC
”
means
the U.S. Securities and Exchange Commission.
“
Secured
Indebtedness
”
means
any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured
by
a Lien.
“
Securities
Act
”
means
the Securities Act of 1933, as amended, and the rules and regulations of the
SEC
promulgated thereunder.
“
Senior
Credit Facilities
”
means
the ABL Facility and the General Credit Facility.
“
Senior
Indebtedness
”
means:
(1)
all
Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit
Facilities or Notes and related Guarantees (including interest accruing on
or
after the filing of any petition in bankruptcy or similar proceeding or for
reorganization of the Issuer or any Guarantor (at the rate provided for in
the
documentation with respect thereto, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings)), and any and all other
fees, expense reimbursement obligations, indemnification amounts, penalties,
and
other amounts (whether existing on the Issue Date or thereafter created or
incurred) and all obligations of the Issuer or any Guarantor to reimburse any
bank or other Person in respect of amounts paid under letters of credit,
acceptances or other similar instruments;
(2)
all
Hedging Obligations (and guarantees thereof) owing to a Lender (as defined
in
the Senior Credit Facilities) or any Affiliate of such Lender (or any Person
that was a Lender or an Affiliate of such Lender at the time the applicable
agreement giving rise to such Hedging Obligation was entered into);
provided
that
such Hedging Obligations are permitted to be incurred under the terms of this
Indenture;
(3)
any
other
Indebtedness of the Issuer or any Guarantor permitted to be incurred under
the
terms of this Indenture, unless the instrument under which such Indebtedness
is
incurred expressly provides that it is on a parity with or subordinated in
right
of payment to the Notes or any related Guarantee; and
(4)
all
Obligations with respect to the items listed in the preceding clauses (1),
(2)
and (3);
provided
,
however
,
that
Senior Indebtedness shall not include:
(a)
any
obligation of such Person to the Issuer or any of its Subsidiaries;
(b)
any
liability for federal, state, local or other taxes owed or owing by such
Person;
(c)
any
accounts payable or other liability to trade creditors arising in the ordinary
course of business;
(d)
any
Indebtedness or other Obligation of such Person which is subordinate or junior
in any respect to any other Indebtedness or other Obligation of such Person;
or
(e)
that
portion of any Indebtedness which at the time of incurrence is incurred in
violation of this Indenture;
provided
that
such Indebtedness shall be deemed not to have been incurred in violation of
this
Indenture for purposes of this clause if such Indebtedness consists of
Designated Senior Indebtedness, and the holders of such Indebtedness or their
agent or representative (a) had no actual knowledge at the time
of
incurrence that the incurrence
of such Indebtedness violated this Indenture and (b) shall have received
an
Officer’s Certificate to the effect that
the
incurrence of such
Indebtedness does not violate the provisions of this
Indenture.
“
Senior
Indenture
”
means
the Senior Indenture dated as of the Issue Date, among the Issuer, Dollar
General, the Guarantors, as guarantors and the Trustee, as trustee, pursuant
to
which the Senior Notes are issued.
“
Senior
Notes
”
means
the $1,175,000,000 aggregate principal amount of 10.625% Senior Notes due 2015
issued by the Issuer under the Senior Indenture on the Issue Date.
“
Senior
Subordinated Indebtedness
”
means:
(1)
with
respect to the Issuer, Indebtedness which ranks equal in right of payment to
the
Notes, and
(2)
with
respect to any Guarantor, Indebtedness which ranks equal in right of payment
to
the Guarantee of such entity of the Notes.
“
Shelf
Registration Statement
”
means
the Shelf Registration Statement as defined in the Registration Rights
Agreement.
“
Significant
Subsidiary
”
means
any Restricted Subsidiary that would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such regulation is in effect on the Issue Date.
“
Similar
Business
”
means
any business conducted or proposed to be conducted by the Issuer and its
Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.
“
Special
Interest
”
means
all additional interest then owing pursuant to the Registration Rights
Agreement.
“
Sponsor
Management Agreement
”
means
the management agreement between certain of the management companies associated
with the Investors and the Issuer.
“
Subordinated
Indebtedness
”
means,
with respect to the Notes,
(1)
any
Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and
(2)
any
Indebtedness of any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Notes.
“
Subsidiary
”
means,
with respect to any Person:
(1)
any
corporation, association, or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than
50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of
determination
owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof or is
consolidated
under GAAP with such Person at such time; and
(2)
any
partnership, joint venture, limited liability company or similar entity of
which
(x)
more
than
50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise,
and
(y)
such
Person or any Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.
“
Total
Assets
”
means
the total assets of the Issuer and its Restricted Subsidiaries on a consolidated
basis, as shown on the most recent consolidated balance sheet of the Issuer
or
such other Person as may be expressly stated.
“
Transactions
”
means
the
acquisition of all of the outstanding capital stock of Dollar General
Corporation, including the payment of the acquisition consideration in
connection therewith, the equity investment by the Investors and members of
management, the issuance of the Notes and the Notes, the tender offer and
consent solicitation for any and all of the outstanding 8
5
¤
8
%
Notes
due 2010 of Dollar General Corporation and the execution of, and borrowings
on
the Issue Date under, the Senior Credit Facilities and, the pledge and security
arrangements in connection with the foregoing, in each case as in effect on
the
Issue Date, and the related transactions described in the Offering Circular
under the section thereof entitled “Offering Circular Summary—The
Transactions.”
“
Treasury
Rate
”
means,
as of any Redemption Date, the yield to maturity as of such Redemption Date
of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two Business Days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar market data)) most nearly equal to
the
period from the Redemption Date to July 15, 2012;
provided
,
however
,
that if
the period from the Redemption Date to July 15, 2012 is less than one year,
the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used.
“
Trust
Indenture Act
”
means
the Trust Indenture Act of 1939, as amended (15 U.S.C
§§ 77aaa-777bbbb).
“
Trustee
”
means
Wells Fargo Bank, National Association, as trustee, until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
“
Unrestricted
Definitive Note
”
means
one or more Definitive Notes that do not bear and are not required to bear
the
Private Placement Legend.
“
Unrestricted
Global Note
”
means
a
permanent Global Note, substantially in the form of
Exhibit A
attached
hereto that bears the Global Note Legend and that has the “Schedule of Exchanges
of
Interests
in the Global Note” attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing Notes that do
not
bear the Private Placement Legend.
“
Unrestricted
Subsidiary
”
means:
(1)
any
Subsidiary of the Issuer which at the time of determination is an Unrestricted
Subsidiary (as designated by the Issuer, as provided below); and
(2)
any
Subsidiary of an Unrestricted Subsidiary.
The
Issuer may designate any Subsidiary of the Issuer (including any existing
Subsidiary and any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Equity Interests or Indebtedness of, or owns or holds any Lien on, any
property of, the Issuer or any Subsidiary of the Issuer (other than solely
any
Subsidiary of the Subsidiary to be so designated);
provided
that:
(1)
any
Unrestricted Subsidiary must be an entity of which the Equity Interests entitled
to cast at least a majority of the votes that may be cast by all Equity
Interests having ordinary voting power for the election of directors or Persons
performing a similar function are owned, directly or indirectly, by the
Issuer;
(2)
such
designation complies with Section 4.07 hereof; and
(3)
each
of:
(a)
the
Subsidiary to be so designated; and
(b)
its
Subsidiaries
has
not
at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with respect
to
any
Indebtedness pursuant to which the lender has recourse to any of the assets
of
the Issuer or any Restricted Subsidiary.
The
Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
that,
immediately after giving effect to such designation, no Default shall have
occurred and be continuing and either:
(1)
the
Issuer could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;
or
(2)
the
Fixed
Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would
be
greater than such ratio for the Issuer and its Restricted Subsidiaries
immediately prior to such designation,
in
each
case on a
pro
forma
basis
taking into account such designation.
Any
such
designation by the Issuer shall be notified by the Issuer to the Trustee by
promptly filing with the Trustee a copy of the resolution of the board of
directors of the Issuer or any committee thereof giving effect to such
designation and an Officer’s Certificate certifying that such designation
complied with the foregoing provisions.
“
U.S.
Person
”
means
a
U.S. person as defined in Rule 902(k) under the Securities Act.
“
Voting
Stock
”
of
any
Person as of any date means the Capital Stock of such Person that is at the
time
entitled to vote in the election of the board of directors of such
Person.
“
Weighted
Average Life to Maturity
”
means,
when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as
the
case may be, at any date, the quotient obtained by dividing:
(1)
the
sum
of the products of the number of years from the date of determination to the
date of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Disqualified Stock or
Preferred Stock multiplied by the amount of such payment; by
(2)
the
sum
of all such payments.
“
Wholly-Owned
Subsidiary
”
of
any
Person means a Subsidiary of such Person, 100% of the outstanding Equity
Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such
Person.
Section
1.02
|
Other
Definitions
.
|
Term
|
Defined
in
Section
|
“Acceptable
Commitment”
.........................................................................................................................................................................
|
4.10
|
“Affiliate
Transaction”
...............................................................................................................................................................................
|
4.11
|
“Asset
Sale Offer”
.....................................................................................................................................................................................
|
4.10
|
“Authentication
Order”
...............................................................................................................................................................................
|
2.02
|
“Blockage
Notice”
.....................................................................................................................................................................................
|
12.03
|
“AHYDO
Redemption Date”
.....................................................................................................................................................................
|
3.08
|
“Change
of Control Offer”
.........................................................................................................................................................................
|
4.14
|
“Change
of Control Payment”
....................................................................................................................................................................
|
4.14
|
“Change
of Control Payment Date”
............................................................................................................................................................
|
4.14
|
“Covenant
Defeasance”
............................................................................................................................................................................
|
8.03
|
“DTC”
......................................................................................................................................................................................................
|
2.03
|
“Event
of Default”
.....................................................................................................................................................................................
|
6.01
|
“Excess
Proceeds”
...................................................................................................................................................................................
|
4.10
|
“Guarantee
Blockage Notice”
.....................................................................................................................................................................
|
13.03
|
“Guarantee
Payment Blockage Period”
.......................................................................................................................................................
|
13.03
|
“incur”
......................................................................................................................................................................................................
|
4.09
|
“Legal
Defeasance”
...................................................................................................................................................................................
|
8.02
|
“Mandatory
Principal Redemption”
.............................................................................................................................................................
|
3.08
|
“Mandatory
Principal Redemption Amount”
.................................................................................................................................................
|
3.08
|
“Note
Register”..........................................................................................................................................................................................
|
2.03
|
“Non-Payment
Default”
.............................................................................................................................................................................
|
12.03
|
“Offer
Amount”
.........................................................................................................................................................................................
|
3.09
|
“Offer
Period”
...........................................................................................................................................................................................
|
3.09
|
“Paying
Agent”
..........................................................................................................................................................................................
|
2.03
|
“pay
its Guarantee”
....................................................................................................................................................................................
|
13.03
|
“Payment
Blockage Period”
.......................................................................................................................................................................
|
12.03
|
|
|
Term
|
Defined
in
Section
|
|
|
“Payment
Default”
.....................................................................................................................................................................................
|
12.03
|
“PIK
Notes”
..............................................................................................................................................................................................
|
2.01
|
“PIK
Payment”..........................................................................................................................................................................................
|
2.01
|
“Purchase
Date”
........................................................................................................................................................................................
|
3.09
|
“Redemption
Date”
....................................................................................................................................................................................
|
3.07
|
“Refinancing
Indebtedness”
........................................................................................................................................................................
|
4.09
|
“Refunding
Capital Stock”
..........................................................................................................................................................................
|
4.07
|
“Registrar”
................................................................................................................................................................................................
|
2.03
|
“Restricted
Payments”
...............................................................................................................................................................................
|
4.07
|
“SecondCommitment”
................................................................................................................................................................................
|
4.10
|
“Successor
Company”
................................................................................................................................................................................
|
5.01
|
“Successor
Person”
...................................................................................................................................................................................
|
5.01
|
“Treasury
Capital Stock”
............................................................................................................................................................................
|
4.07
|
Section
1.03
|
Incorporation by Reference of Trust Indenture
Act
.
|
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.
The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
“
indenture
securities
”
means
the Notes;
“
indenture
security Holder
”
means
a
Holder of a Note;
“
indenture
to be qualified
”
means
this Indenture;
“
indenture
trustee
”
or
“
institutional
trustee
”
means
the Trustee; and
“
obligor
”
on
the
Notes and the Guarantees means the Issuer and the Guarantors, respectively,
and
any successor obligor upon the Notes and the Guarantees,
respectively.
All
other
terms used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or defined by SEC
rule under the Trust Indenture Act have the meanings so assigned to
them.
Section
1.04
|
Rules of Construction
.
|
Unless
the context otherwise requires:
(a)
a
term
has the meaning assigned to it;
(b)
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c)
“or”
is
not exclusive;
(d)
words
in
the singular include the plural, and in the plural include the
singular;
(e)
“will”
shall be interpreted to express a command;
(f)
provisions
apply to successive events and transactions;
(g)
references
to sections of, or rules under, the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time;
(h)
unless
the context otherwise requires, any reference to an “Article,” “Section” or
“clause” refers to an Article, Section or clause, as the case may be, of this
Indenture; and
(i)
the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not any particular Article, Section, clause or
other subdivision.
Section
1.05
|
Acts of Holders
.
|
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to
the Trustee and, where it is hereby expressly required, to the Issuer. Proof
of
execution of any such instrument or of a writing appointing any such agent,
or
the holding by any Person of a Note, shall be sufficient for any purpose of
this
Indenture and (subject to Section 7.01) conclusive in favor of the Trustee
and
the Issuer, if made in the manner provided in this Section 1.05.
(b)
The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute proof of the authority of the Person executing
the same. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c)
The
ownership of Notes shall be proved by the Note Register.
(d)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Note shall bind every future Holder of the same
Note
and the Holder of every Note issued upon the registration of transfer thereof
or
in exchange therefor or in lieu thereof, in respect of any action taken,
suffered or omitted by the Trustee or the Issuer in reliance thereon, whether
or
not notation of such action is made upon such Note.
(e)
The
Issuer may, in the circumstances permitted by the Trust Indenture Act, set
a
record date for purposes of determining the identity of Holders entitled to
give
any request, demand, authorization, direction, notice, consent, waiver or take
any other act, or to vote or consent to any action by vote or consent authorized
or permitted to be given or taken by Holders. Unless otherwise specified, if
not
set
by the Issuer prior to the first solicitation of a Holder made by any Person
in
respect of any such action, or in the case of any such vote, prior to such
vote,
any such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation.
(f)
Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Note may do so with regard to all or any part of the
principal amount of such Note or by one or more duly appointed agents, each
of
which may do so pursuant to such appointment with regard to all or any part
of
such principal amount. Any notice given or action taken by a Holder or its
agents with regard to different parts of such principal amount pursuant to
this
paragraph shall have the same effect as if given or taken by separate Holders
of
each such different part.
(g)
Without
limiting the generality of the foregoing, a Holder, including DTC that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given
or
taken by Holders, and DTC that is the Holder of a Global Note may provide its
proxy or proxies to the beneficial owners of interests in any such Global Note
through such depositary’s standing instructions and customary
practices.
(h)
The
Issuer may fix a record date for the purpose of determining the Persons who
are
beneficial owners of interests in any Global Note held by DTC entitled under
the
procedures of such depositary to make, give or take, by a proxy or proxies
duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given
or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall
be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other action shall be valid or effective
if made, given or taken more than 90 days after such record date.
ARTICLE
2
THE
NOTES
Section
2.01
|
Form and Dating; Terms
.
|
(a)
General
.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of
Exhibit
A
hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rules or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof.
(b)
Global
Notes
.
Notes
issued in global form shall be substantially in the form of
Exhibit
A
hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form
shall be substantially in the form of
Exhibit
A
attached
hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note
shall represent such of the outstanding Notes as shall be specified in the
“Schedule of Exchanges of Interests in the Global Note” attached thereto and
each shall provide that it shall represent up to the aggregate principal amount
of Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes
represented
thereby may from time to time be reduced or increased, as applicable, to
reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06
hereof.
(c)
Terms
.
The
aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms
and provisions and to be bound thereby. However, to the extent any provision
of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
The
Notes
shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer
as
provided in Section 4.10 hereof or a Change of Control Offer as provided in
Section 4.14 hereof. The Notes shall not be redeemable, other than as provided
in Article 3.
Additional
Notes ranking
pari
passu
with the
Initial Notes may be created and issued from time to time by the Issuer without
notice to or consent of the Holders and shall be consolidated with and form
a
single class with the Initial Notes and shall have the same terms as to status,
redemption or otherwise as the Initial Notes;
provided
that the
Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s
compliance with Section 4.09 hereof. Any Additional Notes shall be issued with
the benefit of an indenture supplemental to this Indenture. In addition, in
connection with the payment of PIK Interest or Partial PIK Interest in respect
of the Notes, the Issuer is entitled to, without the consent of the Holders
and
without regard to Section 4.09, increase the outstanding principal amount of
the
Notes or issue additional Notes (the “
PIK
Notes
”)
under
this Indenture on the same terms and conditions as the Notes offered hereby
(in
each case, the “
PIK
Payment
”).
The
Notes offered by the Issuer, the PIK Notes and any Additional Notes subsequently
issued under this Indenture will be treated as a single class for all purposes
under this Indenture, including waivers, amendments, redemptions and offers
to
purchase. Unless the context requires otherwise, references to “Notes” for all
purposes of this Indenture include any PIK Notes and Additional Notes that
are
actually issued, and references to “principal amount” of the Notes includes any
increase in the principal amount of the outstanding Notes as a result of a
PIK
Payment.
(d)
Euroclear
and Clearstream Procedures Applicable
.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Notes that
are
held by Participants through Euroclear or Clearstream.
Section
2.02
|
Execution and
Authentication
.
|
At
least
one Officer shall execute the Notes on behalf of the Issuer by manual or
facsimile signature.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose until authenticated substantially in the form
provided for in
Exhibit
A
attached
hereto by the manual or facsimile signature of the Trustee. The signature shall
be conclusive evidence that the Note has been duly authenticated and delivered
under this Indenture.
On
the
Issue Date, the Trustee shall, upon receipt of an Issuer Order (an “
Authentication
Order
”),
authenticate and deliver Initial Notes. In addition, at any time, from time
to
time, the Trustee shall upon an Authentication Order authenticate and deliver
any (i) Additional Notes, (ii) any PIK Notes issued in payment of PIK Interest
or Partial PIK Interest and (iii) Exchange Notes or private exchange notes
for
issue only in an Exchange Offer or a private exchange, respectively, pursuant
to
a Registration Rights Agreement, for a like principal amount of Initial Notes.
Such Authentication Order shall specify the amount of the Notes to be
authenticated and, in the case of any issuance of Additional Notes pursuant
to
Section 2.01 hereof, shall certify that such issuance is in compliance with
Section 4.09 of this Indenture. On any Interest Payment Date on which the Issuer
pays PIK Interest and Partial PIK Interest with respect to a Global Note, the
Trustee shall increase the principal amount of such Global Note by an amount
equal to the interest payable, rounded up to the nearest $1,000, for the
relevant Interest Period on the principal amount of such Global Note as of
the
relevant Record Date for such Interest Payment Date, to the credit of the
Holders on such Record Date, pro rata in accordance with their interests, and
an
adjustment shall be made on the books and records of the Trustee (if it is
then
the Custodian for such Global Note) with respect to such Global Note, by the
Trustee or the Custodian, to reflect such increase. On any Interest Payment
Date
on which the Issuer pays PIK Interest or Partial PIK Interest by issuing
definitive PIK Notes, the principal amount of any such PIK Notes issued to
any
Holder, for the relevant Interest Period as of the relevant Record Date for
such
Interest Payment Date, shall be rounded up to the nearest $1.00.
The
Trustee may appoint an authenticating agent acceptable to the Issuer to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the
same rights as an Agent to deal with Holders or an Affiliate of the
Issuer.
Section
2.03
|
Registrar
and
Paying Agent
.
|
The
Issuer shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“
Registrar
”)
and an
office or agency where Notes may be presented for payment (“
Paying
Agent
”).
The
Registrar shall keep a register of the Notes (“
Note
Register
”)
and of
their transfer and exchange. The Issuer may appoint one or more co-registrars
and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent.
The Issuer may change any Paying Agent or Registrar without prior notice to
any
Holder. The Issuer shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Issuer fails to appoint
or
maintain another entity as Registrar or Paying Agent, the Trustee shall act
as
such. The Issuer or any of its Subsidiaries may act as Paying Agent or
Registrar.
The
Issuer initially appoints The Depository Trust Company (“
DTC
”)
to act
as Depositary with respect to the Global Notes.
The
Issuer initially appoints the Trustee to act as the Paying Agent and Registrar
for the Notes and to act as Custodian with respect to the Global
Notes.
Section
2.04
|
Paying
Agent to Hold Money in Trust
.
|
The
Issuer shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or Special Interest, if any, or interest on the Notes, and
will
notify the Trustee of any default by the Issuer in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay
all money held by it to the Trustee. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall
have
no further liability for the money. If the Issuer or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve
as
Paying Agent for the Notes.
Section
2.05
|
Holder Lists
.
|
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee
is not the Registrar, the Issuer shall furnish to the Trustee at least two
Business Days before each Interest Payment Date and at such other times as
the
Trustee may request in writing, a list in such form and as of such date as
the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuer shall otherwise comply with Trust Indenture Act Section
312(a).
Section
2.06
|
Transfer and Exchange
.
|
(a)
Transfer
and Exchange of Global Notes
.
Except
as otherwise set forth in this Section 2.06, a Global Note may be transferred,
in whole and not in part, only to another nominee of the Depositary or to a
successor Depositary or a nominee of such successor Depositary. A beneficial
interest in a Global Note may not be exchanged for a Definitive Note unless
(i)
the Depositary (x) notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Global Note or (y) has ceased to be a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days or (ii) there
shall have occurred and be continuing a Default with respect to the Notes.
Upon
the occurrence of any of the preceding events in (i) or (ii) above, Definitive
Notes delivered in exchange for any Global Note or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depositary (in accordance with its customary
procedures). Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated
and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note, except
for Definitive Notes issued subsequent to any of the preceding events in (i)
or
(ii) above and pursuant to Section 2.06(c) hereof. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a);
provided
,
however
,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b)
Transfer
and Exchange of Beneficial Interests in the Global Notes
.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also
shall
require compliance with either subparagraph (i) or (ii) below, as applicable,
as
well as one or more of the other following subparagraphs, as
applicable:
(i)
Transfer
of Beneficial Interests in the Same Global Note
.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in
the Private Placement Legend;
provided
,
however
,
that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S. Person
or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required
to
be delivered to the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii)
All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes
.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.06(b)(i) hereof, the transferor of such beneficial interest
must deliver to the Registrar either (A) both (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause
to be
credited a beneficial interest in another Global Note in an amount equal to
the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) both (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered
to
effect the transfer or exchange referred to in (1) above. Upon consummation
of
an Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof,
the
requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in the
Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(iii)
Transfer
of Beneficial Interests to Another Restricted Global Note
.
A
beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
2.06(b)(ii) hereof and the Registrar receives the following:
(A)
if
the
transferee will take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of
Exhibit
B
hereto,
including the certifications in item (1) thereof; or
(B)
if
the
transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in
the
form of
Exhibit
B
hereto,
including the certifications in item (2) thereof.
(iv)
Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note
.
A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) hereof and:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the transferee, in the case
of
a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such Holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(a) thereof; or
(2)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of
Exhibit B
hereto,
including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If
any
such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Issuer shall
issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes
in
an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest
in a
Restricted Global Note.
(c)
Transfer
or Exchange of Beneficial Interests for Definitive Notes
.
(i)
Beneficial
Interests in Restricted Global Notes to Restricted Definitive
Notes
.
If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon the occurrence of any of the events
in
paragraph (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar
of
the following documentation:
(A)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (2)(a) thereof;
(B)
if
such
beneficial interest is being transferred to a QIB in accordance with Rule 144A,
a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (1) thereof;
(C)
if
such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate substantially
in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof;
(D)
if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a
certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(a) thereof;
(E)
if
such
beneficial interest is being transferred to the Issuer or any of its Restricted
Subsidiaries, a certificate substantially in the form of
Exhibit
B
hereto,
including the certifications in item (3)(b) thereof; or
(F)
if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate substantially in the form
of
Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global
Note
to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuer
shall execute and the Trustee shall authenticate and mail to the Person
designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest in
a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall mail such Definitive Notes to the Persons in whose names
such
Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions
on
transfer contained therein.
(ii)
Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive
Notes
.
A
holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only upon the occurrence of any of the events
in
subsection (i) or (ii) of Section 2.06(a) hereof and if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive
Note, a certificate from such holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(b) thereof; or
(2)
if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of an Unrestricted Definitive Note, a certificate from such holder
substantially in the form of
Exhibit B
hereto,
including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii)
Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes
.
If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon the occurrence of any of the events in subsection
(i) or (ii) of Section 2.06(a) hereof and satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee
shall authenticate and mail to the Person designated in the instructions a
Definitive Note in the applicable principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.06(c)(ii)
shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from or through the Depositary and the
Participant or Indirect Participant. The Trustee shall mail such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(ii) shall not bear the Private Placement Legend.
(d)
Transfer
and Exchange of Definitive Notes for Beneficial Interests
.
(i)
Restricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes
.
If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A)
if
the
Holder of such Restricted Definitive Note proposes to exchange such Note for
a
beneficial interest in a Restricted Global Note, a certificate from such Holder
substantially in the form of
Exhibit C
hereto,
including the certifications in item (2)(b) thereof;
(B)
if
such
Restricted Definitive Note is being transferred to a QIB in accordance with
Rule
144A, a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (1) thereof;
(C)
if
such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
substantially in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof;
(D)
if
such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule
144,
a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(a) thereof;
(E)
if
such
Restricted Definitive Note is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (3)(b) thereof; or
(F)
if
such
Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially
in
the form of
Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the
Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the applicable Restricted Global Note, in the case of clause (B) above, the
applicable 144A Global Note, and in the case of clause (C) above, the applicable
Regulation S Global Note.
(ii)
Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes
.
A
Holder of a Restricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note only if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuer;
(B)
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate
from such Holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(c) thereof; or
(2)
if
the
Holder of such Definitive Notes proposes to transfer such Notes to a Person
who
shall take delivery thereof in the form of a
beneficial
interest in the Unrestricted Global Note, a certificate from such Holder
substantially in the form of
Exhibit B
hereto,
including the certifications in item
(4)
thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or
cause
to
be increased the aggregate principal amount of the Unrestricted Global
Note.
(iii)
Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes
.
A
Holder of an Unrestricted Definitive Note may
exchange
such
Note for a beneficial interest in an Unrestricted Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the form
of
a
beneficial interest in an Unrestricted Global Note at any time. Upon receipt
of
a request for such an exchange or transfer, the Trustee shall cancel the
applicable
Unrestricted Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If
any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time
when
an Unrestricted Global Note has not yet been issued, the Issuer shall issue
and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes
so
transferred.
(e)
Transfer
and Exchange of Definitive Notes for Definitive Notes
.
Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer
or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar
the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder
or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e):
(i)
Restricted
Definitive Notes to Restricted Definitive Notes
.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if
the Registrar receives the following:
(A)
if
the
transfer will be made pursuant to a QIB in accordance with Rule 144A, then
the
transferor must deliver a certificate substantially in the form of
Exhibit B
hereto,
including the certifications in item (1) thereof;
(B)
if
the
transfer will be made pursuant to Rule 903 or Rule 904 then the transferor
must
deliver a certificate in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof; or
(C)
if
the
transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of
Exhibit B
hereto,
including the certifications required by item (3) thereof, if
applicable.
(ii)
Restricted
Definitive Notes to Unrestricted Definitive Notes
.
Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A)
such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Issuer;
(B)
any
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C)
any
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D)
the
Registrar receives the following:
(1)
if
the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for
an Unrestricted Definitive Note, a certificate from such Holder substantially
in
the form of
Exhibit C
hereto,
including the certifications in item (1)(d) thereof; or
(2)
if
the
Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder substantially in the form of
Exhibit B
hereto,
including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such
exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii)
Unrestricted
Definitive Notes to Unrestricted Definitive Notes
.
A
Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person
who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request to register such a transfer, the Registrar shall
register
the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
(f)
Exchange
Offer
.
Upon
the occurrence of an Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i)
one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not participating
in a distribution of any Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Issuer, and accepted for exchange in the Exchange
Offer and (ii) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes tendered
for acceptance by Persons that certify in the applicable Letters of Transmittal
that (x) they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuer, and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Issuer shall execute and the Trustee shall
authenticate and mail to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the applicable principal
amount. Any Notes that remain outstanding after the consummation of an Exchange
Offer, and Exchange Notes issued in connection with an Exchange Offer, shall
be
treated as a single class of securities under this Indenture.
(g)
Legends
.
The
following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture:
(i)
Private
Placement Legend
.
(A)
Except
as
permitted by subparagraph (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution therefor) shall
bear
the legend in substantially the following form:
THE
NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE),
(4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
(B)
Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii)
or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii)
Global
Note Legend
.
Each
Global Note shall bear a legend in substantially the following
form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.”
(iii)
OID
Legend
.
Each
Global Note shall bear a legend in substantially the following
form:
“THIS
NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. UPON REQUEST, THE ISSUER WILL PROMPTLY MAKE AVAILABLE
TO A
HOLDER OF THIS NOTE INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF OID,
THE ISSUE DATE, THE YIELD TO MATURITY, THE COMPARABLE YIELD AND THE PROJECTED
PAYMENT SCHEDULE. ANY SUCH REQUEST SHOULD BE SENT TO THE ISSUER AT THE FOLLOWING
ADDRESS: C/O DOLLAR GENERAL CORPORATION, 100 MISSION RIDGE, GOODLETSVILLE,
TENNESSEE 37072, ATTENTION: INVESTOR RELATIONS”
(h)
Cancellation
and/or Adjustment of Global Notes
.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned
to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall
be
reduced accordingly and an endorsement shall be made on such Global Note by
the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such
increase.
(i)
General
Provisions Relating to Transfers and Exchanges
.
(i)
To
permit
registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of
an
Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.
(ii)
No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 3.09, 4.10, 4.14
and
9.05 hereof).
(iii)
Neither
the Registrar nor the Issuer shall be required to register the transfer of
or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv)
All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v)
The
Issuer shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption
in
whole or in part, except the unredeemed portion of any Note being redeemed
in
part or (C) to register the transfer of or to exchange a Note between a Record
Date and the next succeeding Interest Payment Date.
(vi)
Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Issuer may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of (and premium, if any) and interest (including Special
Interest, if any) on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Issuer shall be affected by notice to the
contrary.
(vii)
Upon
surrender for registration of transfer of any Note at the office or agency
of
the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute,
and the Trustee shall authenticate and mail, in the name of the designated
transferee or transferees, one or more replacement Notes of any authorized
denomination or denominations of a like aggregate principal amount.
(viii)
At
the
option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination or denominations of a like aggregate principal amount upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Global Notes or Definitive Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and mail, the replacement
Global Notes and Definitive Notes which the Holder making the exchange is
entitled to in accordance with the provisions of Section 2.02
hereof.
(ix)
All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
Section
2.07
|
Replacement Notes
.
|
If
any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer
and the Trustee receives evidence to its satisfaction of the ownership and
destruction, loss or theft of any Note, the Issuer shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee’s requirements are met. If required by the Trustee or the Issuer,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee,
any
Agent and any authenticating agent from any loss that any of them may suffer
if
a Note is replaced. The Issuer may charge for its expenses in replacing a
Note.
Every
replacement Note is a contractual obligation of the Issuer and shall be entitled
to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
Section
2.08
|
Outstanding Notes
.
|
The
Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global
Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the
Issuer
or an Affiliate of the Issuer holds the Note.
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a bona fide purchaser.
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to
pay
Notes payable on that date and the Paying Agent is not prohibited from paying
such money to the Holders on that date pursuant to Article 12 and Article 13
of
this Indenture, then on and after that date such Notes shall be deemed to be
no
longer outstanding and shall cease to accrue interest.
Section
2.09
|
Treasury Notes
.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer, or
by
any Affiliate of the Issuer, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that
a
Responsible Officer of the Trustee knows are so owned, upon receipt of an
Officer’s Certificate shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to
the
satisfaction of the Trustee the pledgee’s right to deliver any such direction,
waiver or consent with respect to the Notes and that the pledgee is not the
Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such
other obligor.
Section
2.10
|
Temporary Notes
.
|
Until
certificates representing Notes are ready for delivery, the Issuer may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Issuer considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
Holders
and beneficial holders, as the case may be, of temporary Notes shall be entitled
to all of the benefits accorded to Holders, or beneficial holders, respectively,
of Notes under this Indenture.
Section
2.11
|
Cancellation
.
|
The
Issuer at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. The Trustee or, at
the
direction of the Trustee, the Registrar or the Paying Agent and no one else
shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy cancelled Notes (subject
to the record retention requirement of the Exchange Act). Certification of
the
destruction of all cancelled Notes shall be delivered to the
Issuer.
The Issuer may not issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.
Section
2.12
|
Defaulted Cash Interest
.
|
If
the
Issuer defaults in a payment of cash interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the
amount of defaulted cash interest proposed to be paid on each Note and the
date
of the proposed payment, and at the same time the Issuer shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such defaulted interest or shall make arrangements satisfactory
to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such defaulted interest as provided in this Section 2.12. The Trustee shall
fix or cause to be fixed each such special record date and payment date;
provided
that no
such special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. The Trustee shall promptly notify the Issuer
of such special record date. At least 15 days before the special record date,
the Issuer (or, upon the written request of the Issuer, the Trustee in the
name
and at the expense of the Issuer) shall mail or cause to be mailed, first-class
postage prepaid, to each Holder a notice at his or her address as it appears
in
the Note Register that states the special record date, the related payment
date
and the amount of such interest to be paid.
Subject
to the foregoing provisions of this Section 2.12 and for greater certainty,
each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other
Note.
Section
2.13
|
CUSIP and ISIN Numbers
.
|
The
Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally
in use) and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices
of redemption as a convenience to Holders;
provided
,
that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice
of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected
by
any defect in or omission of such numbers. The Issuer will as promptly as
practicable notify the Trustee of any change in the CUSIP or ISIN
numbers.
ARTICLE
3
REDEMPTION
Section
3.01
|
Notices to Trustee.
|
If
the
Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish
to the Trustee, at least 2 Business Days before notice of redemption is required
to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof
but not more than 60 days before a Redemption Date, an Officer’s Certificate
setting forth (i) the paragraph or subparagraph of such Note and/or Section
of
this Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of the Notes to be redeemed and (iv) the
redemption price.
Section
3.02
|
Selection of Notes to Be Redeemed or
Purchased
.
|
If
less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee shall select the Notes to be redeemed or purchased
(a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed, (b) on a
pro
rata
basis or
(c) by lot or by such other method in accordance with the procedures of
DTC. In the event of partial redemption or purchase by lot, the particular
Notes
to be redeemed or purchased shall be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption date by the
Trustee from the outstanding Notes not previously called for redemption or
purchase.
The
Trustee shall promptly notify the Issuer in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected shall be in amounts of $2,000
or
whole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can
be
redeemed in part, except that if all of the Notes of a Holder are to be redeemed
or purchased, the entire outstanding amount of Notes held by such Holder, even
if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed
or
purchased. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption or purchase also apply
to
portions of Notes called for redemption or purchase.
Section
3.03
|
Notice of Redemption
.
|
Subject
to Sections 3.09 hereof, the Issuer shall mail or cause to be mailed by
first-class mail notices of redemption at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Holder’s registered address or otherwise in accordance with the procedures of
DTC, except that redemption notices may be mailed more than 60 days prior to
a
Redemption Date if the notice is issued in connection with Article 8 or Article
13 hereof. Except as set forth in Section 3.07(e) hereof, notices of redemption
may not be conditional.
The
notice shall identify the Notes to be redeemed and shall state:
(a)
the
Redemption Date;
(b)
the
redemption price;
(c)
if
any
Note is to be redeemed in part only, the portion of the principal amount of
that
Note that is to be redeemed and that, after the Redemption Date upon surrender
of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion of the original Note representing the same indebtedness to the extent
not redeemed will be issued in the name of the Holder of the Notes upon
cancellation of the original Note;
(d)
the
name
and address of the Paying Agent;
(e)
that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f)
that,
unless the Issuer defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption
Date;
(g)
the
paragraph or subparagraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed;
(h)
that
no
representation is made as to the correctness or accuracy of the CUSIP and/or
ISIN number, if any, listed in such notice or printed on the Notes;
and
(i)
if
in
connection with a redemption pursuant to Section 3.07(c) or 3.07(d) hereof,
any
condition to such redemption.
At
the
Issuer’s request, the Trustee shall give the notice of redemption in the
Issuer’s name and at its expense;
provided
that the
Issuer shall have delivered to the Trustee, at least 2 Business Days before
notice of redemption is required to be mailed or caused to be mailed to Holders
pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by
the
Trustee), an Officer’s Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in
the
preceding paragraph.
Section
3.04
|
Effect of Notice of
Redemption
.
|
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the Redemption
Date
at the redemption price (except as provided for in Section 3.07(e) hereof).
The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to
have been given, whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the Holder
of
any Note designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note. Subject to
Section 3.05 hereof, on and after the redemption date, interest ceases to accrue
on Notes or portions thereof called for redemption.
Section
3.05
|
Deposit of Redemption or Purchase
Price
.
|
Prior
to
10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer
shall deposit with the Trustee or with the Paying Agent money sufficient to
pay
the redemption or purchase price of and accrued and unpaid interest (including
Special Interest, if any) on all Notes to be redeemed or purchased on that
date.
The Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid
interest on, all Notes to be redeemed or purchased.
If
the
Issuer complies with the provisions of the preceding paragraph, on and after
the
redemption or purchase date, interest shall cease to accrue on the Notes or
the
portions of Notes called for redemption or purchase. If a Note is redeemed
or
purchased on or after a Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest to the redemption or purchase
date shall be paid to the Person in whose name such Note was registered at
the
close of business on such Record Date. If any Note called for redemption or
purchase shall not be so paid upon surrender for redemption or purchase because
of the failure of the Issuer to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption or purchase date
until such principal is paid, and to the extent lawful on any interest accrued
to the redemption or purchase date not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
Section
3.06
|
Notes Redeemed or Purchased in
Part
.
|
Upon
surrender of a Note that is redeemed or purchased in part, the Issuer shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Issuer a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered representing the same indebtedness to the extent
not redeemed or purchased;
provided
that
each new Note will be in a principal amount of $2,000 or an integral multiple
of
$1,000 in excess thereof. It is understood that, notwithstanding anything in
this Indenture to the contrary, only an Authentication Order and not an Opinion
of Counsel or Officer’s Certificate is required for the Trustee to authenticate
such new Note.
Section
3.07
|
Optional Redemption
.
|
(a)
Except
as
set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to July 15, 2012.
(b)
At
any
time prior to July 15, 2012, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class
mail to the registered address of each Holder of Notes or otherwise in
accordance with the procedures of DTC, at a redemption price equal to 100%
of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Special Interest, if any, to the date of
redemption (the “
Redemption
Date
”),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(c)
On
and
after July 15, 2012, the Issuer may redeem the Notes, in whole or in part,
upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to the registered address of each Holder of Notes or otherwise in accordance
with the procedures of DTC, at the redemption prices (expressed as percentages
of principal amount of the Notes to be redeemed) set forth below, plus accrued
and unpaid interest thereon and Special Interest, if any, to the applicable
Redemption Date, subject to the right of Holders of Notes of record on the
relevant record date to receive interest due on the relevant interest payment
date, if redeemed during the twelve-month period beginning on July 15 of each
of
the years indicated below:
Year
|
Percentage
|
2012.............................................................................................................
|
105.938%
|
2013.............................................................................................................
|
103.958%
|
2014.............................................................................................................
|
101.979%
|
2015
and
thereafter.......................................................................................
|
100.000%
|
(d)
In
addition, until July 15, 2010, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Notes at a
redemption price equal to 111.875% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and Special Interest, if any, to the
applicable Redemption Date, subject to the right of Holders of Notes of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at
least 50% of the sum of the original aggregate principal amount of Notes issued
under this Indenture and the original principal amount of any Additional Notes
issued under this Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption;
provided
further
that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering.
(e)
Any
notice of any redemption may be given prior to the redemption thereof, and
any
such redemption or notice may, at the Issuer’s discretion, be subject to one or
more conditions precedent, including, but not limited to, completion of an
Equity Offering or other corporate transaction.
(f)
If
the
Issuer redeems less than all of the outstanding Notes, the Trustee shall select
the Notes to be redeemed in the manner described under Section 3.02
hereof.
(g)
Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
Section
3.08
|
Mandatory Redemption
.
|
(a)
Except
as
set forth in Section 3.08(b) hereof, the Issuer will not be required to make
any
mandatory redemption or sinking fund payments with respect to the Notes.
(b)
If
the
Notes would otherwise constitute “applicable high yield discount obligations”
within the meaning of Section 163(i)(1) of the Code, at the end of each accrual
period ending after the fifth anniversary of the Notes' issuance (each, an
“
AHYDO
redemption date
”),
the
Issuer will be required to redeem for cash a portion of each Note then
outstanding equal to the “Mandatory Principal Redemption Amount” (such
redemption, a “
Mandatory
Principal Redemption
”).
The
redemption price for the portion of each Note redeemed pursuant to a Mandatory
Principal Redemption will be 100% of the principal amount of such portion plus
any accrued interest thereon on the date of redemption. The “
Mandatory
Principal Redemption Amount
”
means,
as of each AHYDO redemption date, the excess, if any, of (a) the aggregate
amount of accrued and unpaid interest and all accrued and unpaid “original issue
discount” (as defined in Section 1273(a)(1) of the Code) with respect to the
Notes, over (b) an amount equal to the product of (i) the “issue price” (as
defined in Sections 1273(b) and 1274(a) of the Code) of the Notes multiplied
by
(ii) the “yield to maturity” (as defined in the Treasury Regulation Section
1.1272-1(b)(1)(i)) of the Notes. No partial redemption or repurchase of the
senior notes prior to any AHYDO redemption date pursuant to any other provision
of this Indenture will alter the Issuer's obligation to make any Mandatory
Principal Redemption with respect to any Notes that remain outstanding on such
AHYDO redemption date.
Any
redemption pursuant to this Section 3.08 shall be made pursuant to the
provisions of Section 3.01 through 3.06 hereof.
Section
3.09
|
Asset Sales
.
|
(a)
In
the
event that, pursuant to Section 4.10 hereof, the Issuer shall be required to
commence an Asset Sale Offer, it shall follow the procedures specified
below.
(b)
The
Asset
Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is
required by applicable law (the “
Offer
Period
”).
No
later than five Business Days after the termination of the Offer Period (the
“
Purchase
Date
”),
the
Issuer shall apply all Excess Proceeds (the “
Offer
Amount
”)
to the
purchase of Notes and, if required or permitted by the terms thereof, any Senior
Indebtedness (on a
pro
rata
basis),
or, if less than the Offer Amount has been tendered, all Notes and Senior
Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes
so purchased shall be made in the same manner as interest payments are
made.
(c)
If
the
Purchase Date is on or after a Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest and Special Interest, if any,
up
to but excluding the Purchase Date, shall be paid to the Person in whose name
a
Note is registered at the close of business on such Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to
the
Asset Sale Offer.
(d)
Upon
the
commencement of an Asset Sale Offer, the Issuer shall send, by first-class
mail,
a notice to each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders and holders of Senior Indebtedness. The notice, which shall
govern the terms of the Asset Sale Offer, shall state:
(i)
that
the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer shall remain
open;
(ii)
the
Offer
Amount, the purchase price and the Purchase Date;
(iii)
that
any
Note not tendered or accepted for payment shall continue to accrue
interest;
(iv)
that,
unless the Issuer defaults in making such payment, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest after the
Purchase Date;
(v)
that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in the minimum amount of $2,000 or an integral
multiple of $1,000 in excess thereof only;
(vi)
that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall
be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” attached to the Note completed, or transfer by book-entry
transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying
Agent at the address specified in the notice at least three days before the
Purchase Date;
(vii)
that
Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a facsimile transmission or letter setting
forth
the name of the Holder, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased;
(viii)
that,
if
the aggregate principal amount of Notes and Senior Indebtedness surrendered
by
the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes
and such Senior Indebtedness to be purchased on a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered (with such adjustments as may be deemed appropriate by
the
Trustee so that only Notes in minimum denominations of $2,000, or integral
multiples of $1,000 in excess thereof, shall be purchased); and
(ix)
that
Holders whose Notes were purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the
extent not repurchased.
(e)
On
or
before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept
for
payment, on a
pro
rata
basis to
the extent necessary, the Offer Amount of Notes or portions thereof validly
tendered pursuant to the Asset Sale Offer or, if less than the Offer Amount
has
been tendered, all Notes tendered and (2) deliver or cause to be delivered
to
the Trustee the Notes properly accepted together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions thereof so
tendered.
(f)
The
Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes properly tendered by such Holder and accepted by the Issuer for
purchase, and the Issuer shall promptly issue a new Note, and the Trustee,
upon
receipt of an Authentication Order, shall authenticate and mail or deliver
(or
cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary, no
Opinion of Counsel or Officer’s Certificate is required for the Trustee to
authenticate and mail or deliver such new Note) in a principal amount equal
to
any unpurchased portion of the Note surrendered representing the same
indebtedness to the extent not repurchased;
provided
that
each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly
mailed or delivered by the Issuer to the Holder thereof. The Issuer shall
publicly announce the results of the Asset Sale Offer on or as soon as
practicable after the Purchase Date.
Other
than as specifically provided in this Section 3.09 or Section 4.10, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE
4
COVENANTS
Section
4.01
|
Payment of Notes
.
|
The
Issuer shall pay or cause to be paid the principal of, premium, if any, Special
Interest, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, cash Special Interest, if
any, and cash interest shall be considered paid on the date due if the Paying
Agent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time
on the due date money deposited by the Issuer in immediately available funds
and
designated for and sufficient to pay all principal, premium, if any, and
interest then due and the Paying Agent is not prohibited from paying such money
to the Holders on that date pursuant to Article 12 and Article 13 of this
Indenture.
The
Issuer shall pay all Special Interest, if any, in the same manner on the dates
and in the amounts set forth in any Registration Rights Agreement.
The
Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section
4.02
|
Maintenance of Office or
Agency
.
|
The
Issuer shall maintain in Minneapolis, Minnesota an office or agency (which
may
be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or
for
exchange and where notices and demands to or upon the Issuer in respect of
the
Notes and this Indenture may be served. The Issuer shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The
Issuer may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided
that no
such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in Minneapolis, Minnesota for such
purposes. The Issuer shall give prompt written notice to the Trustee of any
such
designation or rescission and of any change in the location of any such other
office or agency.
The
Issuer hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Issuer in accordance with Section 2.03
hereof.
Section
4.03
|
Reports and Other
Information
.
|
(a)
Notwithstanding
that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual
and quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the SEC, the Issuer shall
file
with the SEC (and make available to the Trustee and Holders of the Notes
(without exhibits), without cost to any Holder, within 15 days after the
Issuer files with the SEC) from and after the Issue Date,
(1)
within
90 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K
by a non-accelerated filer) after the end of each fiscal year, annual reports
on
Form 10-K, or any successor or comparable form, containing the information
required to be contained therein, or required in such successor or comparable
form;
(2)
within
45
days after the end of each of the first three fiscal quarters of each fiscal
year, reports on Form 10-Q containing all information that would be
required to be contained in Form 10-Q, or any successor or comparable
form;
(3)
promptly
from time to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K, or any successor or comparable
form; and
(4)
any
other
information, documents and other reports which the Issuer would be required
to
file with the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act;
in
each
case in a manner that complies in all material respects with the requirements
specified in such form;
provided
that the
Issuer shall not be so obligated to file such reports with the SEC if the SEC
does not permit such filing, in which event the Issuer shall make available
such
information to prospective purchasers of Notes, in addition to providing such
information to the Trustee and the Holders of the
Notes,
in
each case within 15 days after the time the Issuer would be required to file
such information with the SEC if it were subject to Section 13 or 15(d) of
the Exchange Act. In addition, to the extent not satisfied by the foregoing,
the
Issuer shall, for so long as any Notes are outstanding, furnish or otherwise
make available to Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
In
the
event that any direct or indirect parent company of the Issuer becomes a
Guarantor of the Notes, the Issuer may satisfy its obligations under this
Section 4.03 with respect to financial information relating to the Issuer by
furnishing financial information relating to such parent;
provided
that the
same is accompanied by consolidating information that explains in reasonable
detail the differences between the information relating to such parent, on
the
one hand, and the information relating to the Issuer and its Restricted
Subsidiaries on a standalone basis, on the other hand.
Notwithstanding
the foregoing, the requirements of this Section 4.03 shall be deemed satisfied
prior to the commencement of the Exchange Offer or the effectiveness of the
Shelf Registration Statement described in the Registration Rights Agreement
dated the date hereof (1) by the filing with the SEC of the Exchange Offer
Registration Statement or Shelf Registration Statement (or any other similar
registration statement), and any amendments thereto, with such financial
information that satisfies Regulation S-X, subject to exceptions consistent
with
the presentation of financial information in the Offering Circular, to the
extent filed within the times specified above, or (2) by posting reports
that would be required to be filed substantially in the form required by the
SEC
on the Issuer’s website (or that of any of its parent companies) or providing
such reports to the Trustee within 15 days after the time the Issuer would
be
required to file such information with the SEC if the Issuer were subject to
Section 13 or 15(d) of the Exchange Act, the financial information (including
a
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section) that would be required to be included in such reports,
subject to exceptions consistent with the presentation of financial information
in the Offering Circular, in each case, to the extent filed within the times
specified above.
Notwithstanding
anything herein to the contrary, the Issuer will not be deemed to have failed
to
comply with any of its agreements set forth under this Section 4.03 for purposes
of Section 6.01(3) until 120 days after the date any report is required to
be filed with the SEC (or posted on the Issuer's website or provided to the
Trustee) pursuant to this Section 4.03.
Section
4.04
|
Compliance Certificate
.
|
(a)
The
Issuer and each Guarantor (to the extent that such Guarantor is so required
under the Trust Indenture Act) shall deliver to the Trustee, within 90 days
after the end of each fiscal year ending after the Issue Date, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer stating that a review of the activities of the Issuer and
its
Restricted Subsidiaries during the preceding fiscal year has been made under
the
supervision of the signing Officer with a view to determining whether the Issuer
has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to such Officer signing such certificate,
that to the best of his or her knowledge the Issuer has kept, observed,
performed and fulfilled each and every condition and covenant contained in
this
Indenture and is not in default in the performance or observance of any of
the
terms, provisions, covenants and conditions of this Indenture (or, if a Default
shall have occurred, describing all such Defaults of which he or she may have
knowledge and what action the Issuer is taking or proposes to take with respect
thereto).
(b)
When
any
Default has occurred and is continuing under this Indenture, or if the Trustee
or the holder of any other evidence of Indebtedness of the Issuer or any
Subsidiary gives any notice or takes any other action with respect to a claimed
Default, the Issuer shall promptly (which shall
be
no
more than five (5) Business Days) deliver to the Trustee by registered or
certified mail or by facsimile transmission an Officer’s Certificate specifying
such event and what action the Issuer proposes to take with respect
thereto.
The
Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate negotiations
or
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section
4.06
|
Stay, Extension and Usury
Laws
.
|
The
Issuer and each of the Guarantors covenant (to the extent that they may lawfully
do so) that they shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Issuer and
each of the Guarantors (to the extent that they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law, and covenant that
they
shall not, by resort to any such law, hinder, delay or impede the execution
of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been
enacted.
Section
4.07
|
Limitation on Restricted
Payments
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(I)
declare
or pay any dividend or make any payment or distribution on account of the
Issuer’s, or any of its Restricted Subsidiaries’ Equity Interests, including any
dividend or distribution payable in connection with any merger or consolidation
other than:
(A)
dividends
or distributions by the Issuer payable solely in Equity Interests (other than
Disqualified Stock) of the Issuer; or
(B)
dividends
or distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its
pro
rata
share of
such dividend or distribution in accordance with its Equity Interests in such
class or series of securities;
(II)
purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests
of
the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation;
(III)
make
any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:
(A)
Indebtedness
permitted under clauses (8) and (9) of Section 4.09(b) hereof;
or
(B)
the
purchase, repurchase or other acquisition of Subordinated Indebtedness purchased
in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date of purchase,
repurchase or acquisition; or
(IV)
make
any
Restricted Investment
(all
such
payments and other actions set forth in clauses (I) through (IV) above
(other than any exception thereto) being collectively referred to as
“
Restricted
Payments
”),
unless, at the time of such Restricted Payment:
(1)
no
Default shall have occurred and be continuing or would occur as a consequence
thereof;
(2)
immediately
after giving effect to such transaction on a
pro
forma
basis,
the Issuer could incur $1.00 of additional Indebtedness under Section 4.09(a)
hereof; and
(3)
such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the Issue
Date
(including Restricted Payments permitted by clauses (1), (2) (with respect
to the payment of dividends on Refunding Capital Stock pursuant to clause
(b) thereof only), (6)(c), (9) and (14) of Section 4.07(b) hereof
but excluding all other Restricted Payments permitted by Section 4.07(b) hereof,
is less than the sum of (without duplication):
(a)
50%
of
the Consolidated Net Income of the Issuer for the period (taken as one
accounting period) beginning May 4, 2007, to the end of the Issuer’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment, or, in the case such
Consolidated Net Income for such period is a deficit, minus 100% of such
deficit;
plus
(b)
100%
of
the aggregate net cash proceeds and the fair market value, as determined in
good
faith by the Issuer, of marketable securities or other property received by
the
Issuer since immediately after the Issue Date from the issue or sale
of:
(i)
(A) Equity
Interests of the Issuer, including Treasury Capital Stock, but excluding cash
proceeds and the fair market value, as determined in good faith by the Issuer,
of marketable securities or other property received from the sale
of:
(x)
Equity
Interests to members of management, directors or consultants of the Issuer,
any
direct or indirect parent company of the Issuer and the Issuer’s Subsidiaries
after the Issue Date to the extent such amounts have been applied to Restricted
Payments made in accordance with clause (4) of Section 4.07(b);
and
(y)
Designated
Preferred Stock; and
(B)
to
the
extent such net cash proceeds are actually contributed to the Issuer, Equity
Interests of the Issuer’s direct or indirect parent companies (excluding
contributions of the proceeds from the sale of Designated Preferred
Stock
of such companies or
contributions to the extent such amounts have been applied to Restricted
Payments made in accordance with
clause
(4) of Section
4.07(b) hereof); or
(ii)
debt
securities of the Issuer that have been converted into or exchanged for such
Equity Interests of the Issuer;
provided
,
however
,
that
this clause (b) shall not include the proceeds from (V) Refunding
Capital Stock, (W) Equity Interests of the Issuer or convertible debt
securities of the Issuer sold to a Restricted Subsidiary, as the case may be,
(X) Disqualified Stock or debt securities that have been converted into
Disqualified Stock or (Y) Excluded Contributions or (Z)
transactions
whose proceeds were used to incur Indebtedness, Disqualified Stock or Preferred
Stock pursuant to Section 4.09(b)(13)(a) hereof, solely to the extent of such
usage;
plus
(c)
100%
of
the aggregate amount of cash and the fair market value, as determined in good
faith by the Issuer, of marketable securities or other property contributed
to
the capital of the Issuer following the Issue Date (other than net cash proceeds
to the extent such net cash proceeds (i) have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause
(13)(a) of Section 4.09(b) hereof, (ii) are contributed by a
Restricted Subsidiary or (iii) constitute Excluded Contributions);
plus
(d)
to
the
extent not already included in Consolidated Net Income, 100% of the aggregate
amount received in cash and the fair market value, as determined in good faith
by the Issuer, of marketable securities or other property received by means
of:
(i)
the
sale
or other disposition (other than to the Issuer or a Restricted Subsidiary)
of
Restricted Investments made by the Issuer or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Issuer
or
its Restricted Subsidiaries and repayments of loans or advances, and releases
of
guarantees, which constitute Restricted Investments by the Issuer or its
Restricted Subsidiaries, in each case after the Issue Date; or
(ii)
the
sale
(other than to the Issuer or a Restricted Subsidiary) of the stock of an
Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other
than in each case to the extent the Investment in such Unrestricted Subsidiary
was made by the Issuer or a Restricted Subsidiary pursuant to clause (7) of
Section 4.07(b) hereof or to the extent such Investment constituted a Permitted
Investment) or a dividend from an Unrestricted Subsidiary after the Issue Date;
plus
(e)
in
the
case of the redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary after the Issue Date, the fair market value of the Investment in
such
Unrestricted Subsidiary, as determined by the Issuer in good faith (or if such
fair market value exceeds $75.0 million, in writing by an Independent
Financial Advisor), at the time of the redesignation of such Unrestricted
Subsidiary as a Restricted Subsidiary other than to the extent the Investment
in
such Unrestricted Subsidiary was made by the Issuer or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) or to the
extent such Investment constituted a Permitted Investment.
(b)
The
foregoing provisions of Section 4.07(a) shall not prohibit:
(1)
the
payment of any dividend within 60 days after the date of declaration thereof,
if
at the date of declaration such payment would have complied with the provisions
of this Indenture;
(2)
(a) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
(“
Treasury
Capital Stock
”)
or
Subordinated Indebtedness of the Issuer or any Equity Interests of any direct
or
indirect parent company of the Issuer, in exchange for, or out of the proceeds
of the substantially concurrent sale (other than to a Restricted Subsidiary)
of,
Equity Interests of the Issuer or any direct or indirect parent company of
the
Issuer to the extent contributed to the Issuer (in each case, other than any
Disqualified Stock) (“
Refunding
Capital Stock
”)
and
(b) if immediately prior to the retirement of Treasury Capital Stock, the
declaration and payment of dividends thereon was permitted under clause
(6) of this Section 4.07(b), the declaration and payment of dividends on
the Refunding Capital Stock (other than Refunding Capital Stock the proceeds
of
which were used to redeem, repurchase, retire or otherwise acquire any Equity
Interests of any direct or indirect parent company of the Issuer) in an
aggregate amount per year no greater than the aggregate amount of dividends
per
annum that were declarable and payable on such Treasury Capital Stock
immediately prior to such retirement;
(3)
the
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Issuer or a Guarantor made in exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer
or a Guarantor, as the case may be, which is incurred in compliance with Section
4.09 hereof so long as:
(a)
the
principal amount (or accreted value) of such new Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus any accrued
and
unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired for value, plus the amount of any reasonable
premium (including reasonable tender premiums), defeasance costs and any
reasonable fees and expenses incurred in connection with the issuance of such
new Indebtedness;
(b)
such
new
Indebtedness is subordinated to the Notes or the applicable Guarantee at least
to the same extent as such Subordinated Indebtedness so purchased, exchanged,
redeemed, repurchased, acquired or retired for value;
(c)
such
new
Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired; and
(d)
such
new
Indebtedness has a Weighted Average Life to Maturity equal to or greater than
the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness
being so redeemed, repurchased, acquired or retired;
(4)
a
Restricted Payment to pay for the repurchase, retirement or other acquisition
or
retirement for value of Equity Interests (other than Disqualified Stock) of
the
Issuer or any of its direct or indirect parent companies held by any future,
present or former employee, director or
consultant
of
the Issuer, any of its Subsidiaries or any of its direct or indirect parent
companies pursuant to any management equity plan or stock option plan or
any
other
management or employee benefit plan or agreement, including any Equity Interests
rolled over by management of the Issuer or any of its direct or
indirect
parent companies in connection with the Transactions;
provided
,
however
,
that
the aggregate Restricted Payments made under this clause (4) do not
exceed
in any
calendar year $12.5 million (which shall increase to $25.0 million subsequent
to
the consummation of an underwritten public Equity Offering by
the
Issuer or
any direct or indirect parent entity of the Issuer) (with unused amounts
in any
calendar year being carried over to succeeding calendar years
subject
to a
maximum (without giving effect to the following proviso) of $50.0 million
in any calendar year (which shall increase to $100.0 million subsequent to
the
consummation of an underwritten public Equity Offering by the Issuer or any
direct or indirect parent corporation of the Issuer));
provided
further
that
such
amount
in any
calendar year may be increased by an amount not to exceed:
(a)
the
cash
proceeds from the sale of Equity Interests (other than Disqualified Stock)
of
the Issuer and, to the extent contributed to the Issuer, Equity Interests of
any
of the Issuer’s direct or indirect parent companies, in each case to members of
management, directors or consultants of the Issuer, any of its Subsidiaries
or
any of its direct or indirect parent companies that occurs after the Issue
Date,
to the extent the cash proceeds from the sale of such Equity Interests have
not
otherwise been applied to the payment of Restricted Payments by virtue of clause
(3) of Section 4.07(a);
plus
(b)
the
cash
proceeds of key man life insurance policies received by the Issuer or its
Restricted Subsidiaries after the Issue Date;
less
(c)
the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (a) and (b) of this clause (4);
and
provided
,
further
,
that
cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary
from members of management of the Issuer, any of the Issuer’s direct or indirect
parent companies or any of the Issuer’s Restricted Subsidiaries in connection
with a repurchase of Equity Interests of the Issuer or any of its direct or
indirect parent companies will not be deemed to constitute a Restricted Payment
for purposes of this Section 4.07 or any other provision of this
Indenture;
(5)
the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any
class or series of Preferred Stock of any Restricted Subsidiary issued in
accordance with Section 4.09 hereof to the extent such dividends are included
in
the definition of “Fixed Charges”;
(6)
(a) the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer
after the Issue Date;
(b)
the
declaration and payment of dividends to a direct or indirect parent company
of
the Issuer, the proceeds of which will be used to fund the payment of dividends
to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of such parent company issued after the Issue Date;
provided
that the
amount of dividends paid pursuant to this clause (b) shall not exceed the
aggregate amount of cash actually contributed to the Issuer from the sale of
such Designated Preferred Stock; or
(c)
the
declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon
pursuant to clause (2) of this Section 4.07(b);
provided
,
however
,
in the
case of each of (a), (b) and (c) of this clause (6), that for the most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date of issuance of such Designated
Preferred Stock or the declaration of such dividends on Refunding Capital Stock
that is Preferred Stock, after giving effect to such issuance or declaration
on
a
pro
forma
basis,
the Issuer and its Restricted Subsidiaries on a consolidated basis would have
had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;
(7)
Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (7) that
are at the time outstanding, without giving effect to the sale of an
Unrestricted Subsidiary to the extent the proceeds of such sale do not consist
of cash or marketable securities, not to exceed $50.0 million at the time of
such Investment (with the fair market value of each Investment being measured
at
the time made and without giving effect to subsequent changes in
value);
(8)
repurchases
of Equity Interests deemed to occur upon exercise of stock options or warrants
if such Equity Interests represent a portion of the exercise price of such
options or warrants;
(9)
the
declaration and payment of dividends on the Issuer’s common stock (or the
payment of dividends to any direct or indirect parent entity to fund a payment
of dividends on such entity’s common stock), following consummation of the first
public offering of the Issuer’s common stock or the common stock of any of its
direct or indirect parent companies after the Issue Date, of up to 6% per
annum of the net cash proceeds received by or contributed to the Issuer in
or
from any such public offering, other than public offerings with respect to
the
Issuer’s common stock registered on Form S-8 and other than any public sale
constituting an Excluded Contribution;
(10)
Restricted
Payments that are made with Excluded Contributions;
(11)
other
Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11) not to exceed $100.0
million at the time made;
(12)
distributions
or payments of Receivables Fees;
(13)
any
Restricted Payment made as part of the Transactions and the fees and expenses
related thereto or used to fund amounts owed to Affiliates (including dividends
to any direct or indirect parent of the Issuer to permit payment by such parent
of such amount), in each case to the extent permitted by Section 4.11
hereof;
(14)
the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness in accordance with provisions similar to those
described under Sections 4.10 and 4.14 hereof;
provided
that all
Notes tendered by Holders in connection with a Change of Control Offer or Asset
Sale Offer, as applicable, have been repurchased, redeemed or acquired for
value;
(15)
the
declaration and payment of dividends by the Issuer to, or the making of loans
to, any direct or indirect parent in amounts required for any direct or indirect
parent companies to pay, in each case without duplication,
(a)
franchise
and excise taxes and other fees, taxes and expenses required to maintain their
corporate existence;
(b)
foreign,
federal, state and local income taxes, to the extent such income taxes are
attributable to the income of the Issuer and its Restricted Subsidiaries and,
to
the extent of the amount actually received from its Unrestricted Subsidiaries,
in amounts required to pay such taxes to the extent attributable to the income
of such Unrestricted Subsidiaries;
provided
that in
each case the amount of such payments in any fiscal year does not exceed the
amount that the Issuer and its Restricted Subsidiaries would be required to
pay
in respect of foreign, federal, state and local taxes for such fiscal year
were
the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to
the extent described above) to pay such taxes separately from any such parent
entity;
(c)
customary
salary, bonus and other benefits payable to officers and employees of any direct
or indirect parent company of the Issuer to the extent such salaries, bonuses
and other benefits are attributable to the ownership or operation of the Issuer
and its Restricted Subsidiaries;
(d)
general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Issuer to the extent such costs and expenses are
attributable to the ownership or operation of the Issuer and its Restricted
Subsidiaries; and
(e)
fees
and
expenses other than to Affiliates of the Issuer related to any unsuccessful
equity or debt offering of such parent entity;
provided
,
however
,
that at
the time of, and after giving effect to, any Restricted Payment permitted under
clause (11) of this Section 4.07(b), no Default shall have occurred and be
continuing or would occur as a consequence thereof.
The
Issuer shall not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the last sentence of the definition of
“Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary
as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and
its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined
as
set forth in the last sentence of the definition of “Investments.” Such
designation shall be permitted only if a Restricted Payment in such amount
would
be permitted at such time, whether pursuant to Section 4.07(a) hereof or under
clause (7), (10) or (11) of Section 4.07(b), or pursuant to the
definition of “Permitted Investments,” and if such Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
Notwithstanding
the foregoing provisions of this Section 4.07, the Issuer will not, and will
not
permit any of its Restricted Subsidiaries to, pay any cash dividend or make
any
cash distribution on or in respect of the Issuer’s Capital Stock or purchase for
cash or otherwise acquire for cash any Capital Stock of the Issuer or any direct
or indirect parent of the Issuer, for the purpose of paying any cash dividend
or
making any cash distribution to, or acquiring Capital Stock of any direct or
indirect parent of the Issuer for cash from, the Investors, or Guarantee any
Indebtedness of any Affiliate of the
Issuer
for the purpose of paying such dividend, making such distribution or so
acquiring such Capital Stock to or from the Investors, in each case by means
of
utilization of the cumulative Restricted Payment credit provided by Section
4.07(a), or the exceptions provided by clauses (1), (7) or (11) of Section
4.07(b) or clauses (8) or (13) of the definition of “Permitted Investments”,
unless at the time and after giving effect to such payment, the Consolidated
Leverage Ratio of the Issuer would be equal to or less than
6.00:1.00.
Section
4.08
|
Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries that
are not Guarantors to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any such Restricted Subsidiary to:
(1)
(A)
pay
dividends or make any other distributions to the Issuer or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or
(B)
pay
any
Indebtedness owed to the Issuer or any of its Restricted
Subsidiaries;
(2)
make
loans or advances to the Issuer or any of its Restricted Subsidiaries;
or
(3)
sell,
lease or transfer any of its properties or assets to the Issuer or any of its
Restricted Subsidiaries.
(b)
The
restrictions in Section 4.08(a) hereof shall not apply to encumbrances or
restrictions existing under or by reason of:
(1)
contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant
to
the Senior Credit Facilities and the related documentation;
(2)
this
Indenture and the Notes, the Senior Indenture and the Senior Notes;
(3)
purchase
money obligations for property acquired in the ordinary course of business
that
impose restrictions of the nature discussed in clause (3) of Section 4.08(a)
hereof on the property so acquired;
(4)
applicable
law or any applicable rule, regulation or order;
(5)
any
agreement or other instrument of a Person acquired by the Issuer or any
Restricted Subsidiary in existence at the time of such acquisition (but not
created in connection therewith or in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or assets
of
any Person, other than the Person and its Subsidiaries, or the property or
assets of the Person and its Subsidiaries, so acquired;
(6)
contracts
for the sale of assets, including customary restrictions with respect to a
Subsidiary of the Issuer pursuant to an agreement that has been entered into
for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary;
(7)
Secured
Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof
and Section 4.12 hereof that limits the right of the debtor to dispose of the
assets securing such Indebtedness;
(8)
restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(9)
other
Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant Section 4.09
hereof;
(10)
customary
provisions in joint venture agreements and other agreements or arrangements
relating solely to such joint venture;
(11)
customary
provisions contained in leases or licenses of intellectual property and other
agreements, in each case, entered into in the ordinary course of
business;
(12)
any
encumbrances or restrictions of the type referred to in clauses (1), (2) and
(3)
of Section 4.08(a) hereof imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses
(1) through (11) of this Section 4.08(b);
provided
that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of
the
Issuer, no more restrictive with respect to such encumbrance and other
restrictions taken as a whole than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing; and
(13)
restrictions
created in connection with any Receivables Facility that, in the good faith
determination of the Issuer are necessary or advisable to effect the
transactions contemplated under such Receivables Facility.
Section
4.09
|
Limitation on Incurrence of Indebtedness and Issuance of Disqualified
Stock and Preferred Stock
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise (collectively,
“
incur
”
and
collectively, an “
incurrence
”),
with
respect to any Indebtedness (including Acquired Indebtedness), and the Issuer
shall not issue any shares of Disqualified Stock and shall not permit any
Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred
Stock;
provided
,
however
,
that
the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur
Indebtedness (including Acquired Indebtedness), issue shares of Disqualified
Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage Ratio
on
a consolidated basis for the Issuer and its Restricted Subsidiaries’ most
recently ended four fiscal quarters for which internal financial statements
are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock or Preferred Stock is issued would have
been at least 2.00 to 1.00, determined on a
pro
forma
basis
(including a
pro
forma
application
of the net proceeds therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or Preferred Stock had been issued, as
the
case may be, and the application of proceeds therefrom had occurred at the
beginning of such four-quarter period;
provided
,
further
,
that
Restricted Subsidiaries that are not Guarantors may not incur Indebtedness
or
Disqualified Stock or Preferred Stock if, after giving
pro
forma
effect
to
such incurrence or issuance
(including
a
pro
forma
application
of the net proceeds therefrom), more than an aggregate of $250.0 million
of
Indebtedness or Disqualified Stock or Preferred Stock of Restricted Subsidiaries
that are not Guarantors would be outstanding pursuant to this Section 4.09(a)
and clauses (13)(b), (15) and (20) of Section 4.09(b) at such
time.
(b)
The
provisions of Section 4.09(a) hereof shall not apply to:
(1)
the
incurrence of Indebtedness under (x) Credit Facilities (other than the ABL
Facility) by the Issuer or any of its Restricted Subsidiaries and the
issuance
and
creation of letters of credit and bankers’ acceptances thereunder (with letters
of credit and bankers’ acceptances being deemed to have a
principal
amount equal to the face amount thereof), up to an aggregate principal amount
of
$2,625.0 million outstanding at any one time and (y) the ABL Facility
by
the Issuer
or any of its Restricted Subsidiaries and the issuance and creation of letters
of credit and bankers’ acceptances thereunder (with letters of credit
and
bankers’
acceptances being deemed to have a principal amount equal to the face amount
thereof), up to an aggregate principal amount equal to the ABL
Facility
Cap;
(2)
the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes issued on the Issue Date (including any PIK Notes
and
any
Guarantee) and the Exchange Notes and related guarantees of the Exchange Notes
to be issued in exchange for the Notes and the Guarantees
pursuant
to
the Registration Rights Agreement (other than any Additional Notes and related
guarantees);
(3)
the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Senior Notes and related guarantees, as well as any
exchange
notes and exchange guarantees to be issued in exchange for the Senior Notes
and
related guarantees pursuant a registration rights agreement;
(4)
Indebtedness
of the Issuer and its Restricted Subsidiaries in existence on the Issue Date
(other than Indebtedness described in clauses (1), (2)
and
(3), of
this Section 4.09(b));
(5)
Indebtedness
consisting of Capitalized Lease Obligations and Purchase Money Obligations
in a
principal amount not to exceed $250.0 million
(excluding
the principal amount of any Capitalized Lease Obligations or Purchase Money
Obligations relating to the purchase, lease or improvement of the
Company’s
distribution centers located in Fulton, Missouri, Indianola, Mississippi and
Ardmore, Oklahoma) in the aggregate at any one time outstanding together
with
all
other Indebtedness issued under this clause (5); so long as such Indebtedness
exists at the date of such purchase, lease or improvement, or is created
within
270
days thereafter;
(6)
Indebtedness
incurred by the Issuer or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit
issued
in the
ordinary course of business, including letters of credit in respect of workers’
compensation, or employee health claims, or other Indebtedness with
respect
to
reimbursement-type obligations regarding workers’ compensation, or employee
health claims;
provided
,
however
,
that
upon the drawing of such
letters
of
credit or the incurrence of such Indebtedness, such obligations are reimbursed
within 30 days following such drawing or incurrence;
(7)
Indebtedness
arising from agreements of the Issuer or its Restricted Subsidiaries providing
for indemnification, adjustment of purchase price or
similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary,
other
than
guarantees of
Indebtedness
incurred by any Person acquiring all or any portion of such business, assets
or
a Subsidiary for the purpose of financing
such
acquisition;
provided
,
however
,
that
such Indebtedness is not reflected on the balance sheet of the Issuer or any
of
its Restricted Subsidiaries (contingent
obligations
referred to in a
footnote
to financial statements and not otherwise reflected on the balance sheet will
not be deemed to be reflected on such balance
sheet
for
purposes of this
clause
(7));
(8)
Indebtedness
of the Issuer to a Restricted Subsidiary;
provided
that any
such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor
is
expressly
subordinated in right of payment to the Notes;
provided
,
further
,
that
any subsequent issuance or transfer of any Capital Stock or any other event
which
results
in any Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to the Issuer
or
another
Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of
such Indebtedness not permitted by this clause (8);
(9)
Indebtedness
of a Restricted Subsidiary to the Issuer or another Restricted Subsidiary;
provided
that
if a
Guarantor issues such Indebtedness to a
Restricted
Subsidiary that is not a Guarantor (other than to any Restricted Subsidiary
engaged in the insurance business in order to provide insurance to the
Issuer
and
its Subsidiaries), such Indebtedness is expressly subordinated in right of
payment to the Guarantee of the Notes of such Guarantor;
provided,
further
,
that
any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary
or
any other subsequent transfer of any such Indebtedness (except to the Issuer
or
another Restricted Subsidiary) shall be deemed, in each case, to
be
an
incurrence of such Indebtedness not permitted by this
clause (9);
(10)
shares
of
Preferred Stock of a Restricted Subsidiary issued to the Issuer or another
Restricted Subsidiary;
provided
that any
subsequent issuance
or
transfer
of any Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent
transfer of any such shares of Preferred Stock (except to the Issuer or another
of its Restricted Subsidiaries) shall be deemed in each case to be an
issuance
of
such shares of Preferred Stock not permitted by this clause (10);
(11)
Hedging
Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with
respect
to
any Indebtedness permitted to be incurred pursuant to this Section 4.09,
exchange rate risk or commodity pricing risk;
(12)
obligations
in respect of performance, bid, appeal and surety bonds and completion
guarantees provided by the Issuer or any of its Restricted
Subsidiaries
in the ordinary course of business;
(13)
(a) Indebtedness
or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or
Preferred Stock of the Issuer or any Restricted
Subsidiary
equal to 100.0% of the net cash proceeds received by the Issuer since
immediately after the Issue Date from the issue or sale of Equity Interests
of
the
Issuer or
cash contributed to the capital of the Issuer (in each case, other than Excluded
Contributions or proceeds of Disqualified Stock or sales of Equity
Interests
to
the Issuer or any of its Subsidiaries) as determined in accordance with
clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the extent such
net
cash
proceeds
or cash have not been applied pursuant to such clauses to make Restricted
Payments or to make other Investments, payments or exchanges
pursuant
to
Section 4.07(b) hereof or to make Permitted Investments (other than Permitted
Investments specified in clauses (1) and (3) of the definition
thereof)
and
(b) Indebtedness
or Disqualified Stock of the Issuer and Indebtedness, Disqualified Stock or
Preferred Stock of the Issuer or any Restricted Subsidiary not
otherwise
permitted hereunder in an aggregate principal amount or liquidation preference,
which when aggregated with the principal amount and liquidation
preference
of
all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding
and incurred pursuant to this clause (13)(b), does not at any one
time
outstanding exceed $250.0 million;
provided
,
however
,
that on
a
pro
forma
basis,
together with any amounts incurred and outstanding by Restricted
Subsidiaries
that are not Guarantors pursuant to the second proviso to Section 4.09(a) and
clauses (15) and (20) thereof, no more than $250.0 million of
Indebtedness,
Disqualified Stock or Preferred Stock at any one time outstanding and incurred
pursuant to this clause (13)(b) shall be incurred by Restricted
Subsidiaries
that are not Guarantors (it being understood that any Indebtedness, Disqualified
Stock or Preferred Stock incurred pursuant to this clause (13)(b)
shall
cease
to be deemed incurred or outstanding for purposes of this clause (13)(b)
but shall be deemed incurred for the purposes of Section 4.09(a) hereof
from
and
after the first date on which the Issuer or such Restricted Subsidiary could
have incurred such Indebtedness, Disqualified Stock or Preferred Stock
under
Section
4.09(a) hereof without reliance on this clause (13)(b));
(14)
the
incurrence or issuance by the Issuer or any Restricted Subsidiary of
Indebtedness, Disqualified Stock or Preferred Stock which serves
to refund
or
refinance
any Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any
Restricted Subsidiary incurred as permitted under Section
4.09(a)
hereof
and
clauses (2), (3), (4), (5) and (13)(a) of this Section 4.09(b)
above, this clause (14) and clause (15) of this Section 4.10(b) or any
Indebtedness,
Disqualified
Stock
or
Preferred Stock of the Issuer or any Restricted Subsidiary issued to so refund
or refinance such Indebtedness, Disqualified
Stock
or
Preferred Stock of
the
Issuer or any Restricted Subsidiary including additional Indebtedness,
Disqualified Stock or Preferred Stock incurred to pay
premiums
(including reasonable
tender
premiums), defeasance costs and fees in connection therewith (the “
Refinancing
Indebtedness
”)
prior
to its
respective maturity;
provided
,
however
,
that
such
Refinancing Indebtedness:
(a)
has
a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is
incurred which is not less than the remaining Weighted Average Life to Maturity
of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced,
(b)
to
the
extent such Refinancing Indebtedness refinances (i) Indebtedness
subordinated or
pari
passu
to the
Notes or any Guarantee thereof, such Refinancing Indebtedness is subordinated
or
pari
passu
to the
Notes or the Guarantee at least to the same extent as the Indebtedness being
refinanced or refunded or (ii) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness must be Disqualified Stock or Preferred Stock,
respectively, and
(c)
shall
not
include Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary
of
the Issuer that is not a Guarantor that refinances Indebtedness, Disqualified
Stock or Preferred Stock of the Issuer or a Guarantor;
and
provided
further
,
that
subclause (a) of this clause (14) will not apply to any refunding or
refinancing of any Indebtedness outstanding under a Credit
Facility;
(15)
Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Issuer or a Restricted
Subsidiary incurred to finance an acquisition of any Person
or
asset, or
(y) Persons that
are
acquired
by the Issuer or any Restricted Subsidiary or merged into the Issuer or a
Restricted Subsidiary in accordance with the terms of this Indenture;
provided
that
after giving effect to such acquisition or merger, either:
(a)
the
Issuer would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a)
hereof, or
(b)
the
Fixed
Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries is greater
than immediately prior to such acquisition or merger;
provided
,
however
that on
a
pro
forma
basis,
together with amounts incurred and outstanding pursuant to the second proviso
to
Section 4.09(a) and clauses (13)(b) and (20) of this Section 4.09(b), no
more than $250.0 million of Indebtedness, Disqualified Stock or Preferred
Stock at any one time outstanding and incurred by Restricted Subsidiaries that
are not Guarantors pursuant to this clause (15) shall be incurred and
outstanding;
(16)
Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient
funds
in the
ordinary course of business;
provided
that
such Indebtedness is extinguished within two Business Days of its
incurrence;
(17)
Indebtedness
of the Issuer or any of its Restricted Subsidiaries supported by a letter of
credit issued pursuant to any Credit Facilities, in a principal
amount
not in
excess of the stated amount of such letter of credit;
(18)
(a) any
guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other
Obligations of any Restricted Subsidiary, so long as the
incurrence
of
such Indebtedness incurred by such Restricted Subsidiary is permitted under
the
terms of this Indenture, or (b) any guarantee by a Restricted
Subsidiary
of
Indebtedness of the Issuer permitted to be incurred under the terms of this
Indenture;
provided
that
such guarantee is incurred in accordance with
Section
4.15
hereof;
(19)
Indebtedness
of Foreign Subsidiaries of the Issuer in an amount not to exceed at any one
time
outstanding and together with any other
Indebtedness
incurred under this clause (19) 5.0% of the Total Assets of the Foreign
Subsidiaries (it being understood that any Indebtedness incurred pursuant
to
this
clause (19) shall cease to be deemed incurred or outstanding for purposes
of this clause (19) but shall be deemed incurred for the purposes of
Section
4.09(a)
hereof from and after the first date on which the Issuer or such Restricted
Subsidiaries could have incurred such Indebtedness under Section 4.09(a)
hereof
without reliance on this clause (19));
(20)
Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary incurred to
finance or assumed in connection with an acquisition in
a
principal
amount not to exceed $100.0 million in the aggregate at any one time outstanding
together with all other Indebtedness, Disqualified Stock and/or
Preferred
Stock issued under this clause (20) (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this
clause
(20) shall
cease to be deemed incurred or outstanding for purposes of this clause
(20) but shall be deemed
incurred
for the purposes of Section 4.09(a)
hereof
from
and
after the first date on which such Restricted Subsidiary could have incurred
such Indebtedness,
Disqualified
Stock
or
Preferred Stock under Section
4.09(a)
hereof without reliance on this clause (20));
provided
,
however
,
that,
on a
pro
forma
basis,
together
with
amounts
incurred and outstanding by
Restricted
Subsidiaries that are not Guarantors pursuant to the second proviso to Section
4.09(a) and clauses (13)
(b) and
(15) of this Section 4.09(b), no more
than
$250.0 million of Indebtedness would be incurred and outstanding by Restricted
Subsidiaries that are
not Guarantors;
(21)
Indebtedness
of the Issuer or any of its Restricted Subsidiaries consisting of (i) the
financing of insurance premiums or (ii) take-or-pay obligations
contained
in
supply arrangements, in each case, incurred in the ordinary course of business;
and
(22)
Indebtedness
consisting of Indebtedness issued by the Issuer or any of its Restricted
Subsidiaries to current or former officers, directors and
employees
thereof, their respective estates, spouses or former spouses, in each case
to
finance the purchase or redemption of Equity Interests of the Issuer or
any
direct or
indirect parent company of the Issuer to the extent described in clause (4)
of Section 4.07(b) hereof.
For
purposes of
determining compliance with this Section 4.09:
(1)
in
the
event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or
any portion thereof) meets the criteria of more than one of
the
categories of permitted Indebtedness, Disqualified Stock or Preferred Stock
described in clauses (1) through (22) of this Section 4.09(b) or is
entitled to be
incurred
pursuant to Section 4.09(a) hereof, the Issuer, in its sole discretion, shall
classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred
Stock (or any portion thereof) and shall only be required to include the amount
and type of such Indebtedness, Disqualified Stock or Preferred Stock
in
one of the
above clauses;
provided
that all
Indebtedness outstanding under the Credit Facilities on the Issue Date shall
be
treated as incurred on the Issue
Date
under
clause (1) of Section 4.09(b) hereof; and
(2)
at
the
time of incurrence, the Issuer will be entitled to divide and classify an item
of Indebtedness in more than one of the types of Indebtedness
described
in
Section 4.09(a) and 4.09(b) hereof.
Accrual
of interest,
the accretion of accreted value and the payment of interest in the form of
additional Indebtedness, Disqualified Stock or Preferred
Stock
shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock
or
Preferred Stock for purposes of this Section 4.09.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent
principal
amount of Indebtedness denominated in a foreign currency shall be calculated
based on the relevant currency exchange rate in effect on the date
such
Indebtedness
was incurred, in the case of term debt, or first committed, in the case of
revolving credit debt;
provided
that if
such Indebtedness is incurred to
refinance
other Indebtedness denominated in a foreign currency, and such refinancing
would
cause the applicable U.S. dollar-denominated restriction to be
exceeded
if calculated at the relevant currency exchange rate in effect on the date
of
such refinancing, such U.S. dollar-denominated restriction shall be
deemed
not to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness
being
refinanced.
The
principal amount
of any Indebtedness incurred to refinance other Indebtedness, if incurred in
a
different currency from the Indebtedness being
refinanced,
shall be calculated based on the
currency
exchange rate applicable to the currencies in which such respective Indebtedness
is denominated that is in
effect
on
the date of such refinancing.
For
purposes of this Indenture, Indebtedness that is unsecured is not deemed to
be
subordinated or junior to Secured Indebtedness merely because it is unsecured,
and Senior Indebtedness not deemed to be subordinated or junior to any other
Senior Indebtedness merely because it has a junior priority with respect to
the
same collateral.
Section
4.10
|
Asset Sales
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to
consummate, directly or indirectly, an Asset Sale, unless:
(1)
the
Issuer or such Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Issuer) of the assets sold or otherwise disposed
of; and
(2)
except
in
the case of a Permitted Asset Swap, at least 75% of the consideration therefor
received by the Issuer or such Restricted Subsidiary, as the case may be, is
in
the form of cash or Cash Equivalents;
provided
that the
amount of:
(A)
any
liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most
recent balance sheet or in the footnotes thereto) of the Issuer or such
Restricted Subsidiary, other than liabilities that are by their terms
subordinated to the Notes, that are assumed by the transferee of any such assets
and for which the Issuer and all of its Restricted Subsidiaries have been
validly released by all creditors in writing,
(B)
any
securities received by the Issuer or such Restricted Subsidiary from such
transferee that are converted by the Issuer or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing
of such Asset Sale, and
(C)
any
Designated Non-cash Consideration received by the Issuer or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant
to
this clause (C) that is at that time outstanding, not to exceed 5.0% of
Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect
to
subsequent changes in value,
shall
be
deemed to be cash for purposes of this provision and for no other
purpose.
(b)
Within
360 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer
or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from
such
Asset Sale,
(1)
to
permanently reduce:
(A)
Obligations
under any Senior Indebtedness, the Notes or any other Senior Indebtedness,
in
each case, of the Issuer or any Guarantor (other
than
Obligations owed to the Issuer or a Restricted Subsidiary) and, in the case
of
Obligations under revolving credit facilities or other
similar
Indebtedness, to
correspondingly permanently reduce commitments with respect thereto;
provided
that
if
the Issuer or any Restricted Subsidiary shall so
reduce
Obligations under any Senior Subordinated Indebtedness, the Issuer or such
Guarantor will, equally and ratably, reduce Obligations under the Notes by,
at
its
option, (A) redeeming Notes, (B) making an offer (in accordance with
the procedures set forth below for an Asset Sale Offer) to all Holders to
purchase
their
Notes
at 100% of the principal amount thereof,
plus
the
amount of accrued and unpaid interest and Special Interest, if any, on the
principal amount of
Notes
to be
repurchased or (C) purchasing Notes through open market purchases (to the
extent such purchases are at a price equal to or higher than 100% of
the
principal
amount thereof) in a manner that complies with this Indenture and applicable
securities law; or
;
(B)
Indebtedness
of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness
owed
to the Issuer or another Restricted Subsidiary;
(2)
to
make
(a) an Investment in any one or more businesses,
provided
that
such Investment in any business is in the form of the acquisition of Capital
Stock and results in the Issuer or another of its Restricted Subsidiaries,
as
the case may be, owning an amount of the Capital Stock of such business such
that it constitutes a Restricted Subsidiary, (b) capital expenditures or
(c) acquisitions of other assets, in each of (a), (b) and (c), used or
useful in a Similar Business; or
(3)
to
make
an Investment in (a) any one or more businesses,
provided
that
such Investment in any business is in the form of the acquisition of Capital
Stock and results in the Issuer or another of its Restricted Subsidiaries,
as
the case may be, owning an amount of the Capital Stock of such business such
that it constitutes a Restricted Subsidiary, (b) properties or
(c) acquisitions of other assets that, in each of (a), (b) and (c),
replace the businesses, properties and/or assets that are the subject of such
Asset Sale;
provided
that, in
the case of clauses (2) and (3) above, a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such
commitment so long as the Issuer, or such other Restricted Subsidiary enters
into such commitment with the good faith expectation that such Net Proceeds
will
be applied to satisfy such commitment within 180 days of such commitment (an
“
Acceptable
Commitment
”)
and,
in the event any Acceptable Commitment is later cancelled or terminated for
any
reason before the Net Proceeds are applied in connection therewith, the Issuer
or such Restricted Subsidiary enters into another Acceptable Commitment (a
“
Second
Commitment
”)
within
180 days of such cancellation or termination;
provided
,
further
,
that if
any Second Commitment is later cancelled or terminated for any reason before
such Net Proceeds are applied, then such Net Proceeds shall constitute Excess
Proceeds.
(c)
Any
Net
Proceeds from Asset Sales that are not invested or applied as provided and
within the time period set forth Section 4.10(b) shall be deemed to constitute
“
Excess
Proceeds
.”
When
the aggregate amount of Excess Proceeds exceeds $75.0 million, the Issuer
shall make an offer to all Holders of the Notes and, if required or permitted
by
the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness
(an “
Asset
Sale Offer
”),
to
purchase the maximum aggregate principal amount of the Notes and such Senior
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000
in
excess thereof that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any, to the date fixed
for
the closing of such offer, in accordance with the procedures set forth in this
Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess
Proceeds within ten Business Days after the date that Excess Proceeds exceed
$75.0 million by mailing the notice required pursuant to the terms of this
Indenture, with a copy to the Trustee.
To
the
extent that the aggregate amount of Notes and such Senior Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer
may
use any remaining Excess Proceeds for general corporate purposes, subject to
other covenants contained in this Indenture. If the aggregate principal amount
of Notes or such Senior Subordinated Indebtedness surrendered by such holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes and such other Senior Indebtedness, as determined by the Issuer, to be
purchased on a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount
of Excess Proceeds, shall be reset at zero. Additionally, the Issuer may, at
its
option, make an Asset Sale Offer using proceeds from any Asset Sale at any
time
after consummation of such Asset Sale;
provided
that
such Asset Sale Offer shall be in an aggregate amount of not less than
$75.0 million. Upon consummation of such Asset Sale Offer, any Net Proceeds
not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
(d)
Pending
the final application of any Net Proceeds pursuant to this Section 4.11, the
holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce
Indebtedness outstanding under a revolving credit facility or otherwise invest
such Net Proceeds in any manner not prohibited by this Indenture.
(e)
The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
or regulations are applicable in connection with the repurchase of the Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer shall comply with the applicable securities laws and regulations
and
shall not be deemed to have breached its obligations described in this Indenture
by virtue thereof.
Section
4.11
|
Transactions with
Affiliates
.
|
(a)
The
Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its
properties or assets to, or purchase any property or assets from, or enter
into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Issuer
(each of the foregoing, an “
Affiliate
Transaction
”)
involving aggregate payments or consideration in excess of $15.0 million,
unless:
(1)
such
Affiliate Transaction is on terms that are not materially less favorable to
the
Issuer or its relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Issuer or such Restricted Subsidiary
with an unrelated Person on an arm’s-length basis; and
(2)
the
Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $25.0 million, a resolution adopted by the
majority of the board of directors of the Issuer approving such Affiliate
Transaction and set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with clause (1) of this Section
4.11(a).
(b)
The
provisions of Section 4.11(a) hereof shall not apply to the
following:
(1)
transactions
between or among the Issuer or any of its Restricted Subsidiaries;
(2)
Restricted
Payments permitted by Section 4.07 hereof and the definition of “Permitted
Investments”;
(3)
the
payment of management, consulting, monitoring and advisory fees and related
expenses to the Investors pursuant to the Sponsor Management Agreement (plus
any
unpaid management, consulting, monitoring and advisory fees and related expenses
within such amount accrued in any prior year) and the termination fees pursuant
to the Sponsor Management Agreement, in each case as in effect on the Issue
Date, or any amendments thereto (so long as any such amendment is not
disadvantageous in the good faith judgment of the board of directors of the
Issuer to the Holders when taken as a whole compared to the Sponsor Management
Agreement in effect on the Issue Date);
(4)
the
payment of reasonable and customary fees paid to, and indemnities provided
for
the benefit of, officers, directors, employees or consultants of Issuer, any
of
its direct or indirect parent companies or any of its Restricted
Subsidiaries;
(5)
transactions
in which the Issuer or any of its Restricted Subsidiaries, as the case may
be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Issuer or such Restricted Subsidiary from
a
financial point of view or stating that the terms are not materially less
favorable to the Issuer or its relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person on an arm’s-length
basis;
(6)
any
agreement as in effect as of the Issue Date, or any amendment thereto (so long
as any such amendment is not disadvantageous to the Holders when taken as a
whole as compared to the applicable agreement as in effect on the Issue Date
in
the reasonable determination of the Issuer);
(7)
the
existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date and any similar agreements
which it may enter into thereafter;
provided
,
however
,
that
the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date
shall
only be permitted by this clause (7) to the extent that the terms of any such
amendment or new agreement are not otherwise disadvantageous to the Holders
when
taken as a whole in the reasonable determination of the Issuer;
(8)
the
Transactions and the payment of all fees and expenses related to the
Transactions, in each case as disclosed in the Offering Circular;
(9)
transactions
with customers, clients, suppliers, or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise in
compliance with the terms of this Indenture which are fair to the Issuer and
its
Restricted Subsidiaries, in the reasonable determination of the board of
directors of the Issuer or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from
an
unaffiliated party;
(10)
the
issuance of Equity Interests (other than Disqualified Stock) of the Issuer
to
any Permitted Holder or to any director, officer, employee or
consultant;
(11)
sales
of
accounts receivable, or participations therein, in connection with the ABL
Facility and any Receivables Facility;
(12)
payments
by the Issuer or any of its Restricted Subsidiaries to any of the Investors
made
for any financial advisory, financing, underwriting or placement services or
in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are approved
by
a majority of the board of directors of the Issuer in good faith;
(13)
payments
or loans (or cancellation of loans) to employees or consultants of the Issuer,
any of its direct or indirect parent companies or any of its Restricted
Subsidiaries and employment agreements, stock option plans and other similar
arrangements with such employees or consultants which, in each case, are
approved by the Issuer in good faith;
(14)
investments
by the Investors in securities of the Issuer or any of its Restricted
Subsidiaries so long as (i) the investment is being offered generally to other
investors on the same or more favorable terms and (ii) the investment
constitutes less than 5.0% of the proposed or outstanding issue amount of such
class of securities;
(15)
payments
to or from, and transactions with, any joint ventures in the ordinary course
of
business; and
(16)
payments
by the Issuer (and any direct or indirect parent thereof) and its Subsidiaries
pursuant to tax sharing agreements among the Issuer (and any such parent) and
its Subsidiaries on customary terms to the extent attributable to the ownership
or operation of the Issuer and its Subsidiaries;
provided
that in
each case the amount of such payments in any fiscal year does not exceed the
amount that the Issuer, its Restricted Subsidiaries and its Unrestricted
Subsidiaries (to the extent of amounts received from Unrestricted Subsidiaries)
would be required to pay in respect of foreign, federal, state and local taxes
for such fiscal year were the Issuer and its Restricted Subsidiaries (to the
extent described above) to pay such taxes separately from any such parent
entity.
The
Issuer shall not, and shall not permit any Guarantor to, directly or indirectly,
create, incur, assume or suffer to exist any Lien (except Permitted Liens)
that
secures obligations under any Senior Subordinated Indebtedness or Subordinated
Indebtedness or any related Guarantee, on any asset or property of the Issuer
or
any Guarantor now owned or hereafter acquired, or any income or profits
therefrom, or assign or convey any right to receive income therefrom,
unless:
(1)
in
the
case of Liens securing Subordinated Indebtedness, the Notes and related
Guarantees are secured by a Lien on such property, assets or proceeds that
is
senior in priority to such Liens; or
(2)
in
all
other cases, the Notes or the Guarantees are equally and ratably secured or
are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens;
Any
Lien
which is granted to secure the Notes under this Section 4.12 shall be discharged
at the same time as the discharge of the Lien (other than through the exercise
of remedies with respect thereto) that gave rise to the obligation to so secure
the Notes.
Section
4.13
|
Corporate Existence
.
|
Subject
to Article 5 hereof, the Issuer shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Issuer or any
such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of the Issuer and its Restricted Subsidiaries;
provided
that the
Issuer shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries, if the Issuer in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer
and
its Restricted Subsidiaries, taken as a whole.
Section
4.14
|
Offer to Repurchase upon Change of
Control
.
|
(a)
If
a
Change of Control occurs, unless the Issuer has previously or concurrently
mailed a redemption notice with respect to all the outstanding Notes as
described under Section 3.07 hereof, the Issuer shall make an offer to purchase
all of the Notes pursuant to the offer described below (the “
Change
of Control Offer
”)
at a
price in cash (the “
Change
of Control Payment
”)
equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest, if any, to the date of purchase, subject to
the
right of Holders of the Notes of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date. Within 30 days following
any
Change of Control, the Issuer shall send notice of such Change of Control Offer
by first-class mail, with a copy to the Trustee, to each Holder of Notes to
the
address of such Holder appearing in the security register with a copy to the
Trustee or otherwise in accordance with the procedures of DTC, with the
following information:
(1)
that
a
Change of Control Offer is being made pursuant to this Section 4.14 and that
all
Notes properly tendered pursuant to such Change of
Control
Offer
will be accepted for payment by the Issuer;
(2)
the
purchase price and the purchase date, which will be no earlier than 30 days
nor
later than 60 days from the date such notice is mailed (the
“
Change
of Control Payment Date
”);
(3)
that
any
Note not properly tendered will remain outstanding and continue to accrue
interest;
(4)
that
unless the Issuer defaults in the payment of the Change of Control Payment,
all
Notes accepted for payment pursuant to the Change of
Control
Offer
will cease to accrue interest on the Change of Control Payment
Date;
(5)
that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes, with the
form
entitled
“Option of Holder to Elect Purchase” on the reverse of such Notes completed, to
the paying agent specified in the notice at the address specified
in
the notice
prior to the close of business on the third Business Day preceding the Change
of
Control Payment Date;
(6)
that
Holders shall be entitled to withdraw their tendered Notes and their election
to
require the Issuer to purchase such Notes,
provided
that the
paying
agent
receives, not later than the close of business on the 30th day following the
date of the Change of Control notice, a
facsimile
transmission or letter
setting
forth the name of the Holder of the Notes, the principal amount of Notes
tendered for purchase, and a statement
that such
Holder
is withdrawing its
tendered
Notes and its election to have such Notes purchased;
(7)
that
if
the Issuer is redeeming less than all of the Notes, the Holders of the remaining
Notes will be issued new Notes and such new Notes will
be
equal in
principal amount to the unpurchased portion of the Notes surrendered. The
unpurchased portion of the Notes must be equal to $2,000 or an integral
multiple
of
$1,000 in excess thereof; and
(8)
the
other
instructions, as determined by the Issuer, consistent with this Section 4.14,
that a Holder must follow.
The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to
have been given, whether or not the Holder receives such notice. If (a) the
notice is mailed in a manner herein provided and (b) any Holder fails to receive
such notice or a Holder receives such notice but it is defective, such Holder’s
failure to receive such notice or such defect shall not affect the validity
of
the proceedings for the purchase of the Notes as to all other Holders that
properly received such notice without defect. The Issuer shall comply with
the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws
and regulations thereunder to the extent such laws or regulations are applicable
in connection with the repurchase of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Issuer shall comply with
the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Indenture by virtue thereof.
(b)
On
the
Change of Control Payment Date, the Issuer shall, to the extent permitted by
law,
(1)
accept
for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;
(2)
deposit
with the Paying Agent an amount equal to the aggregate Change of Control Payment
in respect of all Notes or portions thereof so tendered; and
(3)
deliver,
or cause to be delivered, to the Trustee for cancellation the Notes so accepted
together with an Officer’s Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.
(c)
The
Paying Agent will promptly mail to each Holder the Change of Control Payment
for
such Notes, and the Trustee will promptly authenticate and mail (or cause to
be
transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any;
provided
that
each such new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof.
(d)
The
Issuer shall not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth
in this Section 4.14 applicable to a Change of Control Offer made by the Issuer
and purchases all Notes validly tendered and not withdrawn under such Change
of
Control Offer. Notwithstanding anything to the contrary herein, a Change of
Control Offer may be made in advance of a Change of Control, conditional upon
such Change of Control, if a definitive agreement is in place for the Change
of
Control at the time of making of the Change of Control Offer.
(e)
Other
than as specifically provided in this Section 4.14, any purchase pursuant to
this Section 4.14 shall be made pursuant to the provisions of Sections 3.02,
3.05 and 3.06 hereof.
Section
4.15
|
Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries
.
|
The
Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted
Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned
Subsidiaries guarantee other capital markets debt securities of the Issuer
or
any Guarantor), other than a Guarantor, a Foreign Subsidiary or a Receivables
Subsidiary, to guarantee the payment of any Indebtedness of the Issuer or any
other Guarantor unless:
(1)
such
Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as
Exhibit
D
hereto,
providing for a Guarantee by such Restricted Subsidiary, except that with
respect to a guarantee of Indebtedness of the Issuer or any
Guarantor:
(a)
if
the
Notes or such Guarantor’s Guarantee are subordinated in right of payment to such
Indebtedness, the Guarantee under the supplemental indenture shall be
subordinated to such Restricted Subsidiary’s guarantee with respect to such
Indebtedness substantially to the same extent as the Notes are subordinated
to
such Indebtedness; and
(b)
if
such
Indebtedness is by its express terms subordinated in right of payment to the
Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted
Subsidiary with respect to such Indebtedness shall be subordinated in right
of
payment to such Guarantee substantially to the same extent as such Indebtedness
is subordinated to the Notes; and
(2)
such
Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Issuer or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee;
provided
that
this Section 4.15 shall not be applicable to (i) any guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not incurred in connection with, or in contemplation of,
such
Person becoming a Restricted Subsidiary and (ii) guarantees of the
Receivables Facility by any Receivables Subsidiary.
Section
4.16
|
Limitation on Layering
.
|
The
Issuer shall not, and shall not permit any Guarantor to, directly or indirectly,
incur any Indebtedness (including Acquired Indebtedness) that is subordinate
in
right of payment to any Senior Indebtedness of the Issuer or such Guarantor,
as
the case may be, unless such Indebtedness is either:
(1)
equal
in
right of payment with the Notes or such Guarantor's Guarantee of the Notes,
as
the case may be; or
(2)
expressly
subordinated in right of payment to the Notes or such Guarantor's Guarantee
of
the Notes, as the case may be
provided that
this covenant shall not apply to Indebtedness incurred under Section 4.09(b)(1)
of this Indenture.
This
Indenture shall not treat (1) unsecured Indebtedness as subordinated or
junior to Secured Indebtedness merely because it is unsecured or (2) Senior
Indebtedness as subordinated or junior to any other Senior Indebtedness merely
because it has a junior priority with respect to the same
collateral.
ARTICLE
5
SUCCESSORS
Section
5.01
|
Merger, Consolidation or Sale of All or Substantially All
Assets
.
|
(a)
The
Issuer shall not consolidate or merge with or into or wind up into (whether
or
not the Issuer is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets, in one or more related transactions, to any Person unless:
(1)
either:
(x) the Issuer is the surviving corporation; or (y) the Person formed by or
surviving any such consolidation or merger (if other than the Issuer) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
will have been made is a corporation organized or existing under the laws of
the
jurisdiction of organization of the Issuer or the laws of the United States,
any
state thereof, the District of Columbia, or any territory thereof (such Person,
as the case may be, being herein called the “
Successor
Company
”);
(2)
the
Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under the Notes and this Indenture pursuant to
supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(3)
immediately
after such transaction, no Default exists;
(4)
immediately
after giving
pro
forma
effect
to such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable four-quarter
period,
(A)
the
Successor Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) hereof, or
(B)
the
Fixed
Charge Coverage Ratio for the Successor Company, the Issuer and its Restricted
Subsidiaries would be greater than such ratio for the Issuer and its Restricted
Subsidiaries immediately prior to such transaction;
(5)
each
Guarantor, unless it is the other party to the transactions described above,
in
which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental
indenture confirmed that its Guarantee shall apply to such Person’s obligations
under this Indenture, the Notes and the Registration Rights Agreement;
and
(6)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures, if any, comply with this Indenture.
(b)
The
Successor Company shall succeed to, and be substituted for the Issuer, as the
case may be, under this Indenture, the Guarantees and the Notes, as applicable.
Notwithstanding clauses (3) and (4) of Section 5.01(a) hereof,
(1)
any
Restricted Subsidiary may consolidate with or merge into or transfer all or
part
of its properties and assets to the Issuer, and
(2)
the
Issuer may merge with an Affiliate of the Issuer, as the case may be, solely
for
the purpose of reincorporating the Issuer in a State of the United States or
any
state thereof, the District of Columbia or any territory thereof so long as
the
amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not
increased thereby.
(c)
Subject
to certain limitations described in this Indenture governing release of a
Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor
shall, and the Issuer shall not permit any Guarantor to, consolidate or merge
with or into or wind up into (whether or not the Issuer or Guarantor is the
surviving corporation), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or
more
related transactions, to any Person unless:
(1)
(A) such
Guarantor is the surviving corporation or the Person formed by or surviving
any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(such Guarantor or such Person, as the case may be, being herein called the
“
Successor
Person
”);
(B)
the
Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s related
Guarantee pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(C)
immediately
after such transaction, no Default exists; and
(D)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures, if any, comply with this Indenture;
or
(2)
the
transaction is made in compliance with Section 4.10 hereof.
(d)
Subject
to certain limitations described in this Indenture, the Successor Person shall
succeed to, and be substituted for, such Guarantor under this Indenture and
such
Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may
(i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer
solely for the purpose of reincorporating the Guarantor in the United States,
any state thereof, the District of Columbia or any territory thereof or (iii)
convert into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor.
(e)
Notwithstanding
anything to the contrary, the mergers contemplated by the Transaction Agreement
shall be permitted without compliance with this Section 5.01.
Section
5.02
|
Successor Corporation
Substituted
.
|
Upon
any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or
other disposition of all or substantially all of the assets of the Issuer in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Issuer is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the Issuer shall refer instead to
the
successor corporation and not to the Issuer), and may exercise every right
and
power of the Issuer under this Indenture with the same effect as if such
successor Person had been named as the Issuer herein;
provided
that the
predecessor Issuer shall not be relieved from the obligation to pay the
principal of and interest and Special Interest, if any, on the Notes except
in
the case of a sale, assignment, transfer, conveyance or other disposition of
all
of the Issuer’s assets that meets the requirements of Section 5.01
hereof.
ARTICLE
6
DEFAULTS
AND REMEDIES
Section
6.01
|
Events of Default
.
|
(a)
An
“
Event
of Default
”
wherever used herein, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be
effected by operation of law or pursuant to any judgment, decree or order of
any
court or any order, rule or regulation of any administrative or governmental
body):
(1)
default
in payment when due and payable, upon redemption, acceleration or otherwise,
of
principal of, or premium, if any, on the Notes
,
whether
or not such payment is prohibited by the subordination provisions of this
Indenture
;
(2)
default
for 30 days or more in the payment when due of interest or Special Interest
on
or with respect to the Notes
,
whether
or not such payment is prohibited by the subordination provisions of this
Indenture
;
(3)
failure
by the Issuer or any Guarantor for 60 days after receipt of written notice
given
by the Trustee or the Holders of not less 30% in principal amount of the Notes
then outstanding under this Indenture to comply with any of its obligations,
covenants or agreements (other than a default referred to in clauses (1)
and (2) above) contained in this Indenture or the Notes;
(4)
default
under any mortgage, indenture or instrument under which there is issued or
by
which there is secured or evidenced any Indebtedness for money borrowed by
the
Issuer or any of its Restricted Subsidiaries or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries, other than
Indebtedness owed to the Issuer or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists or is created after the issuance of the
Notes, if both:
(a)
such
default either results from the failure to pay any principal of such
Indebtedness at its stated final maturity (after
giving
effect to any
applicable grace periods) or relates to an obligation other than the obligation
to pay principal of any such
Indebtedness
at its stated final
maturity and results in the holder or holders of such Indebtedness causing
such
Indebtedness to become due
prior
to
its
stated
maturity; and
(b)
the
principal amount of such Indebtedness, together with the principal amount of
any
other such Indebtedness in default
for
failure to pay
principal at stated final maturity (after giving effect to any applicable grace
periods), or the maturity of which has been so
accelerated,
aggregate
$50.0 million or more at any one time outstanding;
(5)
failure
by the Issuer or any Significant Subsidiary (or group of Subsidiaries that
together would constitute a Significant Subsidiary) to pay final judgments
aggregating in excess of $50.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days after such
judgment becomes final, and in the event such judgment is covered by insurance,
an enforcement proceeding has been commenced by any creditor upon such judgment
or decree which is not promptly stayed;
(6)
the
Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary
or
any group of Restricted Subsidiaries that, taken together, would constitute
a
Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy
Law:
(i)
commences
proceedings to be adjudicated bankrupt or insolvent;
(ii)
consents
to the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or
consent
seeking reorganization or relief under applicable Bankruptcy law;
(iii)
consents
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
or
other similar official of it or for all
or
substantially all of its property;
(iv)
makes
a
general assignment for the benefit of its creditors; or
(v)
generally
is not paying its debts as they become due;
(7)
a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i)
is
for
relief against the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of
Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
in
a proceeding in which the Issuer or any such Restricted
Subsidiaries
,
that is
a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant
Subsidiary,
is to be adjudicated bankrupt or insolvent;
(ii)
appoints
a receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or any of its Restricted
Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary,
or
for all or
substantially all of the property of the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of
Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary;
or
(iii)
orders
the liquidation of the Issuer or any of its Restricted Subsidiaries that is
a
Significant Subsidiary or any group of
Restricted
Subsidiaries that, taken together, would constitute a Significant
Subsidiary;
and
the
order or decree remains unstayed and in effect for 60 consecutive days;
or
(8)
the
Guarantee of any Significant Subsidiary
(or
group
of Subsidiaries that together would constitute a Significant
Subsidiary)
shall
for
any
reason cease to be in full
force and effect or be declared null and void or any responsible officer of
any
Guarantor that is a Significant Subsidiary, as the
case
may be, denies that it has
any further liability under its Guarantee or gives notice to such effect, other
than by reason of the termination of this
Indenture
or the release of any
such Guarantee in accordance with this Indenture; or
(b)
In
the
event of any Event of Default specified in clause (4) of Section 6.01(a) hereof,
such Event of Default and all
con
sequences
thereof
(excluding any resulting payment default, other than as a result of acceleration
of the Notes) shall be annulled, waived and rescinded,
automatically
and without any
action by the Trustee or the Holders, if within 20 days after such Event of
Default arose:
(1)
the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or
(2)
the
holders thereof have rescinded or waived the acceleration, notice or action
(as
the case may be) giving rise to such Event of Default; or
(3)
the
default that is the basis for such Event of Default has been cured.
Section
6.02
|
Acceleration
.
|
(a)
If
any
Event of Default (other than an Event of Default specified in clause (6) or
(7)
of Section 6.01(a) hereof) occurs and is continuing under this Indenture,
the Trustee or the Holders of at least 30% in principal amount of the then
outstanding Notes under this Indenture may declare the principal, premium,
if
any, interest and any other monetary obligations on all the then outstanding
Notes to be due and payable immediately. Upon the effectiveness of such
declaration, such principal and interest shall be due and payable immediately.
The Trustee shall have no obligation to accelerate the Notes if and so long
as a
committee of its Responsible Officers in good faith determines acceleration
is
not in the best interest of the Holders of the Notes.
(b)
Notwithstanding
the foregoing, in the case of an Event of Default arising under clause (6)
or
(7) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable
immediately without further action or notice.
(c)
The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, Special Interest, if any, or premium
that has become due solely because of the acceleration) have been cured or
waived.
Section
6.03
|
Other Remedies
.
|
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest on
the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing
upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to
the
extent permitted by law.
Section
6.04
|
Waiver of Past Defaults
.
|
Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of
all
of the Notes waive any existing Default and its consequences hereunder, except
a
continuing Default in the payment of the principal of, premium, if any, Special
Interest, if any, or interest on, any Note held by a non-consenting Holder
(including in connection with an Asset Sale Offer or a Change of Control Offer);
provided
,
subject
to Section 6.02 hereof, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or
other Default or impair any right consequent thereon.
Section
6.05
|
Control by Majority
.
|
Holders
of a majority in principal amount of the then total outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
The
Trustee, however, may refuse to follow any direction that conflicts with law
or
this Indenture or that the Trustee determines is unduly prejudicial to the
rights of any other Holder of a Note or that would involve the Trustee in
personal liability.
Section
6.06
|
Limitation on Suits
.
|
Subject
to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect
to this Indenture or the Notes:
(1)
such
Holder has previously given the Trustee notice that an Event of Default is
continuing;
(2)
Holders
of at least 30% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;
(3)
Holders
of the Notes have offered the Trustee reasonable security or indemnity against
any loss, liability or expense;
(4)
the
Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and
(5)
Holders
of a majority in principal amount of the total outstanding Notes have not given
the Trustee a direction inconsistent with such request within such 60-day
period.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section
6.07
|
Rights of Holders of Notes to Receive
Payment
.
|
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Special Interest, if any,
and
interest on the Note, on or after the respective due dates expressed in the
Note
(including in connection with an Asset Sale Offer or a Change of Control Offer),
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such
Holder.
Section 6.08
|
Collection
Suit
by Trustee
.
|
If
an
Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as
trustee of an express trust against the Issuer for the whole amount of principal
of, premium, if any, and Special Interest, if any, and interest remaining unpaid
on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs
and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section
6.09
|
Restoration of Rights and
Remedies
.
|
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceedings, the Issuer, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
Section
6.10
|
Rights and Remedies
Cumulative
.
|
Except
as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
6.11
|
Delay or Omission Not
Waiver
.
|
No
delay
or omission of the Trustee or of any Holder of any Note to exercise any right
or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section
6.12
|
Trustee May File Proofs of
Claim
.
|
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Issuer (or any other
obligor upon the Notes including the Guarantors), its creditors or its property
and shall be entitled and empowered to participate as a member in any official
committee of creditors appointed in such matter and to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall
be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any Plan of Reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to
authorize or consent to or accept or adopt on behalf of any Holder any Plan
of
Reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Holder, or to authorize the Trustee to vote in respect of
the
claim of any Holder in any such proceeding.
Section
6.13
|
Priorities
.
|
If
the
Trustee collects any money or property pursuant to this Article 6, it shall
pay
out the money or property in the following order:
(i)
to
the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of
collection;
(ii)
to
holders of Senior Indebtedness of the Company, and if such money or property
has
been collected from a Guarantor, to holders of Senior Indebtedness of such
Guarantor, in each case to the extent required by Article 12 or Article 13
hereof, as applicable;
(iii)
to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and Special Interest, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and Special Interest, if any, and interest,
respectively; and
(iv)
to
the
Issuer or to such party as a court of competent jurisdiction shall direct
including a Guarantor, if applicable.
The
Trustee may fix a record
date and payment date for any payment to Holders of Notes pursuant to this
Section 6.13.
Section
6.14
|
Undertaking for Costs
.
|
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith
of
the claims or defenses made by the party litigant. This Section 6.14 does not
apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE
7
TRUSTEE
Section
7.01
|
Duties of Trustee
.
|
(a)
If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own
affairs.
(b)
Except
during the continuance of an Event of Default:
(i)
the
duties of the Trustee shall be determined solely by the express provisions
of
this Indenture and the Trustee need perform only those duties
that
are
specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii)
in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions
expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any such
certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions
to
determine whether or not they conform to the requirements of this
Indenture.
(c)
The
Trustee may not be relieved from liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(i)
this
paragraph does not limit the effect of paragraph (b) of this Section
7.01;
(ii)
the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved in a court of competent
jurisdiction
that the Trustee was negligent in ascertaining the pertinent facts;
and
(
iii)
the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it
pursuant
to
Section 6.05 hereof.
(d)
Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this
Section 7.01.
(e)
The
Trustee shall be under no obligation to exercise any of its rights or powers
under this Indenture at the request or direction of any of the Holders of the
Notes unless the Holders have offered to the Trustee reasonable indemnity or
security against any loss, liability or expense.
(f)
The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Issuer. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by
law.
Section
7.02
|
Rights of Trustee
.
|
(a)
The
Trustee may conclusively rely upon any document believed by it to be genuine
and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in
its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation.
(b)
Before
the Trustee acts or refrains from acting, it may require an Officer’s
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in
good faith and in reliance thereon.
(c)
The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent or attorney appointed with due
care.
(d)
The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e)
Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer shall be sufficient if signed by an Officer
of the Issuer.
(f)
None
of
the provisions of this Indenture shall require the Trustee to expend or risk
its
own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it.
(g)
The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture
(h)
In
no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of
the
likelihood of such loss or damage and regardless of the form of
action.
(i)
The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
(j)
In
the
event the Issuer is required to pay Special Interest, the Issuer will provide
written notice to the Trustee of the Issuer’s obligation to pay Special Interest
no later than 15 days prior to the next Interest Payment Date, which notice
shall set forth the amount of the Special Interest to be paid by the Issuer.
The
Trustee shall not at any time be under any duty or responsibility to any Holders
to determine whether the Special Interest is payable and the amount
thereof.
Section
7.03
|
Individual Rights of
Trustee
.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is
also subject to Sections 7.10 and 7.11 hereof.
Section
7.04
|
Trustee’s Disclaimer.
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer’s use of the proceeds from the Notes or any money paid to the
Issuer or upon the Issuer’s direction under any provision of this Indenture, it
shall not be responsible for the use or application of any money received by
any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05
|
Notice of Defaults
.
|
If
a
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of Notes a notice of the Default within 90 days after
it
occurs. Except in the case of a Default relating to the payment of principal,
premium, if any, or interest on any Note, the Trustee may withhold from the
Holders notice of any continuing Default if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in
the interests of the Holders of the Notes. The Trustee shall not be deemed
to
know of any Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is such a Default
is received by the Trustee at the Corporate Trust Office of the
Trustee.
Section
7.06
|
Reports by Trustee to Holders of the
Notes
.
|
Within
60
days after each May 15, beginning with the May 15 following the date
of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with Trust Indenture Act Section 313(a) (but if no event
described in Trust Indenture Act Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee
shall also transmit by mail all reports as required by Trust Indenture Act
Section 313(c).
A
copy of
each report at the time of its mailing to the Holders of Notes shall be mailed
to the Issuer and filed with the SEC and each stock exchange on which the Notes
are listed in accordance with Trust Indenture Act Section 313(d). The Issuer
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section
7.07
|
Compensation and Indemnity
.
|
The
Issuer and the Guarantors, jointly and severally, shall pay to the Trustee
from
time to time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Issuer and the Guarantors, jointly and severally, shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation
for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.
The
Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee
for, and hold the Trustee harmless against, any and all loss, damage, claims,
liability or expense (including attorneys’ fees) incurred by it in connection
with the acceptance or administration of this trust and the performance of
its
duties hereunder (including the costs and expenses of enforcing this Indenture
against the Issuer or any of the Guarantors (including this Section 7.07) or
defending itself against any claim whether asserted by any Holder, the Issuer
or
any Guarantor, or liability in connective with the acceptance, exercise or
performance of any of its powers or duties hereunder). The Trustee shall notify
the Issuer promptly of any claim for which it may seek indemnity. Failure by
the
Trustee to so notify the Issuer shall not relieve the Issuer of its obligations
hereunder. The Issuer shall defend the claim and the Trustee may have separate
counsel and the Issuer shall pay the fees and expenses of such counsel. The
Issuer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee’s own willful misconduct,
negligence or bad faith.
The
obligations of the Issuer under this Section 7.07 shall survive the satisfaction
and discharge of this Indenture or the earlier resignation or removal of the
Trustee.
Notwithstanding
anything contrary in Section 4.12 hereto, to secure the payment obligations
of
the Issuer and the Guarantors in this Section 7.07, the Trustee shall have
a
Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture
or the earlier resignation or removal of the Trustee.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(a)(6) or (7) hereof occurs, the expenses and the compensation
for the services (including the fees and expenses of its agents and counsel)
are
intended to constitute expenses of administration under any Bankruptcy
Law.
The
Trustee shall comply with the provisions of Trust Indenture Act Section
313(b)(2) to the extent applicable.
Section
7.08
|
Replacement of Trustee
.
|
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08. The Trustee may resign in writing
at any time and be discharged from the trust hereby created by so
notifying
the Issuer. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and
the
Issuer in writing. The Issuer may remove the Trustee if:
(a)
the
Trustee fails to comply with Section 7.10 hereof;
(b)
the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(c)
a
custodian or public officer takes charge of the Trustee or its property;
or
(d)
the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Issuer shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Issuer.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee (at the Issuer’s expense), the
Issuer or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
the
Trustee, after written request by any Holder who has been a Holder for at least
six months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Issuer. Thereupon, the resignation or removal of
the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee;
provided
all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section
7.09
|
Successor Trustee by Merger, etc.
|
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
Section
7.10
|
Eligibility;
Disqualification
.
|
There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50,000,000 as set
forth
in its most recent published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements of Trust
Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust
Indenture Act Section 310(b).
Section
7.11
|
Preferential Collection of Claims Against
Issuer
.
|
The
Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has
resigned or been removed shall be subject to Trust Indenture Act Section 311(a)
to the extent indicated therein.
ARTICLE
8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
8.01
|
Option to Effect Legal Defeasance or Covenant
Defeasance
.
|
The
Issuer may, at its option and at any time, elect to have either Section 8.02
or
8.03 hereof applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article 8.
Section
8.02
|
Legal Defeasance and
Discharge
.
|
Upon
the
Issuer’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes and
Guarantees on the date the conditions set forth below are satisfied
(“
Legal
Defeasance
”).
For
this purpose, Legal Defeasance means that the Issuer shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture including that of the Guarantors
(and the Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged
hereunder:
(a)
the
rights of Holders of Notes issued under this Indenture to receive payments
in
respect of the principal of, premium, if any, and interest on the Notes when
such payments are due solely out of the trust created pursuant to this Indenture
referred to in Section 8.04 hereof;
(b)
the
Issuer’s obligations with respect to Notes concerning issuing temporary notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and
the
maintenance of an office or agency for payment and money for security payments
held in trust;
(c)
the
rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s
obligations in connection therewith; and
(d)
this
Section 8.02.
Subject
to compliance with this Article 8, the Issuer may exercise its option under
this
Section 8.02 notwithstanding the prior exercise of its option under Section
8.03
hereof.
Section
8.03
|
Covenant Defeasance
.
|
Upon
the
Issuer’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from their
obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 hereof and clauses
(4)
and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect
to
the outstanding Notes on and after the date the conditions set forth in Section
8.04 hereof are satisfied (“
Covenant
Defeasance
”),
and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01
hereof, but, except as specified above, the remainder of this Indenture and
such
Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to Restricted
Subsidiaries that are Significant Subsidiaries), 6.01(7) (solely with respect
to
Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(8) hereof
shall not constitute Events of Default.
Section
8.04
|
Conditions to Legal or Covenant
Defeasance
.
|
The
following shall be the conditions to the application of either Section 8.02
or
8.03 hereof to the outstanding Notes:
In
order
to exercise either Legal Defeasance or Covenant Defeasance with respect to
the
Notes:
(1)
the
Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion
of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest due on the Notes issued under this
Indenture on the stated maturity date or on the redemption date, as the case
may
be, of such principal, premium, if any, or interest on such Notes and the Issuer
must specify whether such Notes are being defeased to maturity or to a
particular redemption date;
(2)
in
the
case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions,
(a)
the
Issuer has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or
(b)
since
the
original issuance of the Notes, there has been a change in the applicable U.S.
federal income tax law,
in
either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
subject to customary assumptions and exclusions, the
Holders
of the Notes
will not recognize income, gain or loss for U.S. federal income tax purposes,
as
applicable, as a result of such Legal Defeasance
and
will be subject
to U.S. federal income tax on the same amounts, in the same manner and at
the
same times as would have been the case if such
Legal
Defeasance had
not occurred;
(3)
in
the
case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions, the Holders of the Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such Covenant Defeasance and will be subject to such tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4)
no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith)
shall have occurred and be continuing on the date of such deposit;
(5)
such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Senior Credit Facilities, the
Senior Indenture, the Senior Notes or any other material agreement or instrument
(other than this Indenture) to which the Issuer or any Guarantor is a party
or
by which the Issuer or any Guarantor is bound (other than that resulting from
borrowing funds to be applied to make the deposit required to effect such Legal
Defeasance or Covenant Defeasance and any similar and simultaneous deposit
relating to other Indebtedness and, in each case, the granting of Liens in
connection therewith);
(6)
the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and
exclusions following the deposit, the trust funds will not be subject to the
effect of Section 547 of Title 11 of the United States Code;
(7)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate stating that
the deposit was not made by the Issuer with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer or any Guarantor or others;
and
(8)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions) each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance, as the
case
may be, have been complied with.
Section
8.05
|
Deposited Money and Government Securities to Be Held in Trust;
Other
Miscellaneous Provisions
.
|
Subject
to Section 8.06 hereof, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “
Trustee
”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as
the
Trustee may determine, to the Holders of such Notes of all sums
due
and
to become due thereon in respect of principal, premium and Special Interest,
if
any, and interest, but such money need not be segregated from other funds
except
to the extent required by law. Money and Government Securities so held in
trust
are not subject to Article 12 or Article 13 hereof.
The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for
the account of the Holders of the outstanding Notes.
Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Issuer from time to time upon the request of the Issuer any money
or
Government Securities held by it as provided in Section 8.04 hereof which,
in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may
be the opinion delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section
8.06
|
Repayment to Issuer
.
|
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Issuer,
in
trust for the payment of the principal of, premium and Special Interest, if
any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium and Special Interest, if any, or interest has become
due
and payable shall be paid to the Issuer on its request or (if then held by
the
Issuer) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Issuer for payment thereof, and all liability of
the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease.
Section
8.07
|
Reinstatement
.
|
If
the
Trustee or Paying Agent is unable to apply any United States dollars or
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Issuer’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply
all
such money in accordance with Section 8.02 or 8.03 hereof, as the case may
be;
provided
that, if
the Issuer makes any payment of principal of, premium and Special Interest,
if
any, or interest on any Note following the reinstatement of its obligations,
the
Issuer shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE
9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01
|
Without Consent of Holders of
Notes
.
|
Notwithstanding
Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee
or
this Indenture) and the Trustee may amend or supplement this Indenture, any
Guarantee or Notes without the consent of any Holder:
(1)
to
cure
any ambiguity, omission, mistake, defect or inconsistency;
(2)
to
provide for uncertificated Notes of such series in addition to or in place
of
certificated Notes;
(3)
to
comply
with Section 5.01 hereof;
(4)
to
provide for the assumption of the Issuer’s or any Guarantor’s obligations to the
Holders;
(5)
to
make
any change that would provide any additional rights or benefits to the Holders
or that does not adversely affect the legal rights under this Indenture of
any
such Holder;
(6)
to
add
covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;
(7)
to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the Trust Indenture Act;
(8)
to
evidence and provide for the acceptance and appointment under this Indenture
of
a successor Trustee thereunder pursuant to the requirements
thereof;
(9)
to
provide for the issuance of Exchange Notes or private exchange notes, which
are
identical to Exchange Notes except that they are not freely
transferable;
(10)
to
add a
Guarantor under this Indenture;
(11)
to
conform the text of this Indenture, Guarantees or the Notes to any provision
of
the “Description of Senior Subordinated Notes” section of the Offering Circular
to the extent that such provision in such “Description of Senior Subordinated
Notes” section was intended to be a verbatim recitation of a provision of this
Indenture, Guarantee or Notes;
(12)
to
make
any amendment to the provisions of this Indenture relating to the transfer
and
legending of Notes as permitted by this Indenture, including, without limitation
to facilitate the issuance and administration of the Notes;
provided
,
however
,
that
(i) compliance with this Indenture as so amended would not result in Notes
being
transferred in violation of the Securities Act or any applicable securities
law
and (ii) such amendment does not materially and adversely affect the rights
of
Holders to transfer Notes; and
(13)
in
the
event that PIK Notes are issued in certificated form, to make appropriate
amendments to this Indenture to reflect an appropriate minimum denomination
of
certificated PIK Notes and establish minimum redemption amounts for certificated
PIK Notes.
Upon
the
request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Issuer and the Guarantors in the execution
of
any amended or supplemental indenture authorized or permitted by the terms
of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter
into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise. Notwithstanding the foregoing,
no Opinion of Counsel shall be required in connection with the addition of
a
Guarantor under this Indenture upon execution and delivery by such Guarantor
and
the Trustee of a
supplemental
indenture to this Indenture, the form of which is attached as
Exhibit
D
hereto,
and delivery of an Officer’s Certificate.
Section
9.02
|
With Consent of Holders of
Notes
.
|
Except
as
provided below in this Section 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes and the Guarantees with the consent of
the
Holders of at least a majority in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a Default
or Event of Default in the payment of the principal of, premium and Special
Interest, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the Guarantees or the Notes may be waived with the consent
of
the Holders of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for,
or
purchase of, the Notes). Section 2.08 hereof and Section 2.09 hereof shall
determine which Notes are considered to be “outstanding” for the purposes of
this Section 9.02.
Upon
the
request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of
the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Sections 7.02 and 14.04 hereof, the Trustee
shall join with the Issuer in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.
It
shall
not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Issuer shall mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or
waiver.
Without
the consent of each affected Holder of Notes, an amendment or waiver under
this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(1)
reduce
the principal amount of such Notes whose Holders must consent to an amendment,
supplement or waiver;
(2)
reduce
the principal of or change the fixed final maturity of any such Note or alter
or
waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Section 3.09, Section 4.10 and Section 4.14 hereof to
the
extent that any such amendment or waiver does not have the effect of reducing
the principal of or changing the fixed final maturity of any such Note or
altering or waiving the provisions with respect to the redemption of such
Notes);
(3)
reduce
the rate of or change the time for payment of interest on any Note;
(4)
waive
a
Default in the payment of principal of or premium, if any, or interest on the
Notes, except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of
the
payment default that resulted from such acceleration, or in respect of a
covenant or provision contained in this Indenture or any Guarantee which cannot
be amended or modified without the consent of all Holders;
(5)
make
any
Note payable in money other than that stated therein;
(6)
make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders to receive payments of principal of or premium, if
any,
or interest on the Notes;
(7)
make
any
change in these amendment and waiver provisions;
(8)
impair
the right of any Holder to receive payment of principal of, or interest on
such
Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s
Notes;
(9)
make
any
change to or modify the ranking of the Notes that would adversely affect the
Holders; or
(10)
except
as
expressly permitted by this Indenture, modify the Guarantees of any Significant
Subsidiary in any manner adverse to the Holders of the Notes.
Notwithstanding
the foregoing, any amendment to, or waiver of, the provisions of Article 12
or
Article 13 hereof that adversely affects the rights of the Holders will require
the consent of the Holders of at least 75% in aggregate principal amount of
the
Senior Subordinated Notes then outstanding.
Section
9.03
|
Compliance with Trust Indenture
Act
.
|
Every
amendment or supplement to this Indenture or the Notes shall be set forth in
an
amended or supplemental indenture that complies with the Trust Indenture Act
as
then in effect.
Section
9.04
|
Revocation and Effect of
Consents
.
|
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The
Issuer may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders entitled to consent to any amendment, supplement, or
waiver. If a record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only such Persons, shall be entitled to consent to
such
amendment, supplement, or waiver or to revoke any consent previously given,
whether or not such Persons continue to
be
Holders after such record date. No such consent shall be valid or effective
for
more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained.
Section
9.05
|
Notation on or Exchange of
Notes
.
|
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Issuer in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06
|
Trustee to Sign Amendments,
etc
.
|
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant
to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuer may not
sign an amendment, supplement or waiver until the board of directors approves
it. In executing any amendment, supplement or waiver, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
14.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture and that such amendment, supplement or waiver is
the
legal, valid and binding obligation of the Issuer and any Guarantors party
thereto, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03). Notwithstanding the foregoing, no Opinion of Counsel will be required
for
the Trustee to execute any amendment or supplement adding a new Guarantor under
this Indenture.
Section
9.07
|
Payment for Consent
.
|
Neither
the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay
or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to all Holders and is paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or
agreement.
ARTICLE
10
GUARANTEES
Section
10.01
|
Guarantee
.
|
Subject
to this Article 10, each of the Guarantors hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
or
the obligations of the Issuer hereunder or thereunder, that: (a) the principal
of, interest, premium and Special Interest, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the Issuer to the Holders
or the Trustee hereunder or
thereunder
shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms
of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is
a
guarantee of payment and not a guarantee of collection.
The
Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof,
the
recovery of any judgment against the Issuer, any action to enforce the same
or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenants
that this Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and this Indenture.
Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing
any rights under this Section 10.01.
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Issuer or the Guarantors, any amount
paid either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes
of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article 6 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under the Guarantees.
Each
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for
the
benefit of creditors or should a receiver or trustee be appointed for all or
any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes or Guarantees, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Notes shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid
and
not so rescinded, reduced, restored or returned.
In
case
any provision of any Guarantee shall be invalid, illegal or unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
Pursuant
to the provisions of Article 13 hereof, the Guarantee issued by any Guarantor
shall be a general unsecured senior subordinated obligation of such Guarantor
and shall be subordinated in right of payment to all existing and future Senior
Indebtedness of such Guarantor, if any.
Each
payment to be made by a Guarantor in respect of its Guarantee shall be made
without set-off, counterclaim, reduction or diminution of any kind or
nature.
Section
10.02
|
Limitation on Guarantor
Liability
.
|
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the Guarantee of such Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or
any similar federal or state law to the extent applicable to any Guarantee.
To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor shall be limited
to the maximum amount as will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Guarantor that are relevant
under such laws and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this
Article 10, result in the obligations of such Guarantor under its Guarantee
not
constituting a fraudulent conveyance or fraudulent transfer under applicable
law. Each Guarantor that makes a payment under its Guarantee shall be entitled
upon payment in full of all guaranteed obligations under this Indenture to
a
contribution from each other Guarantor in an amount equal to such other
Guarantor’s
pro
rata
portion
of such payment based on the respective net assets of all the Guarantors at
the
time of such payment determined in accordance with GAAP.
Section
10.03
|
Execution and Delivery
.
|
To
evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby
agrees that this Indenture shall be executed on behalf of such Guarantor by
its
President, one of its Vice Presidents or one of its Assistant Vice
Presidents.
Each
Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof
shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Guarantee on the Notes.
If
an
Officer whose signature is on this Indenture no longer holds that office at
the
time the Trustee authenticates the Note, the Guarantee shall be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Guarantee set forth in this Indenture
on
behalf of the Guarantors.
If
required by Section 4.15 hereof, the Issuer shall cause any newly created or
acquired Restricted Subsidiary to comply with the provisions of Section 4.15
hereof and this Article 10, to the extent applicable.
Section 10.04
|
Subrogation
.
|
Each Guarantor shall be subrogated to all rights of Holders of Notes against
the
Issuer in respect of any amounts paid by any Guarantor pursuant to the
provisions of Section 10.01 hereof;
provided
that, if
an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon,
such
right of subrogation until all amounts then due and payable by the Issuer under
this Indenture or the Notes shall have been paid in full.
Section 10.05
|
Benefits Acknowledged
.
|
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this
Indenture
and that the guarantee and waivers made by it pursuant to its Guarantee are
knowingly made in contemplation of such benefits.
Section 10.06
|
Release of Guarantees
.
|
A
Guarantee by a Guarantor shall be automatically and unconditionally released
and
discharged, and no further action by such Guarantor, the Issuer or the Trustee
is required for the release of such Guarantor’s Guarantee, upon:
(1)
(A)
any
sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
such
Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all
the
assets of such Guarantor which sale, exchange or transfer is made in compliance
with the applicable provisions of this Indenture
;
(
B
)
the
release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such
Guarantee, except a discharge or release by or as a result of payment under
such
guarantee;
(C)
the
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof and the definition of
“Unrestricted Subsidiary” hereunder; or
(D)
the
exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuer’s obligations under this
Indenture being discharged in accordance with the terms of this Indenture;
and
(2)
such
Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01
|
Satisfaction and Discharge
.
|
This
Indenture shall be discharged and shall cease to be of further effect as to
all
Notes, when either:
(1)
all
Notes
theretofore authenticated and delivered, except lost, stolen or destroyed Notes
which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust, have been delivered to the Trustee for
cancellation; or
(2)
(A)
all
Notes not theretofore delivered to the Trustee for cancellation have become
due
and payable by reason of the making of a notice of redemption or otherwise,
shall become due and payable within one year or may be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused
to
be deposited with the Trustee as trust funds in trust solely for the benefit
of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a
combination thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest to pay and discharge the entire indebtedness
on
the Notes not theretofore delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or
redemption;
(B)
no
Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith)
with respect to this Indenture or the Notes shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default, under the Senior Credit Facilities, the Senior Indenture,
the Senior Notes or any other material agreement or instrument (other than
this
Indenture) to which the Issuer or any Guarantor is a party or by which the
Issuer or any Guarantor is bound (other than that resulting from borrowing
funds
to be applied to make such deposit and any similar and simultaneous deposit
relating to other Indebtedness and in each case, the granting of Liens in
connection therewith);
(C)
the
Issuer has paid or caused to be paid all sums payable by it under this
Indenture; and
(D)
the
Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be.
In
addition, the Issuer must deliver an Officer’s Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Notwithstanding
the satisfaction and discharge of this Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (A) of clause (2) of this
Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall
survive.
Section
11.02
|
Application
of Trust Money
.
|
Subject
to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it,
in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as
its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium and Special Interest, if any) and interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by
law.
If
the
Trustee or Paying Agent is unable to apply any money or Government Securities
in
accordance with Section 11.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer’s
and any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
11.01 hereof;
provided
that if
the Issuer has made any payment of principal of, premium and Special Interest,
if any, or interest on any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of
such
Notes to receive such payment from the money or Government Securities held
by
the Trustee or Paying Agent.
ARTICLE
12
SUBORDINATION
OF NOTES
Section
12.01
|
Agreement
To Subordinate
.
|
The
Issuer agrees, and each Holder by accepting a Senior Subordinated Note agrees,
that the payment of all Obligations owing in respect of the Notes is
subordinated in right of payment, to the extent and in the manner provided
in
this Article 12, to the prior payment in cash in full of all existing and future
Senior Indebtedness of the Issuer and that the subordination is for the benefit
of and enforceable by the holders of such Senior Indebtedness. The Notes shall
in all respects rank
pari
passu
in right
of payment with all existing and future Senior Subordinated Indebtedness of
the
Issuer, and will be senior in right of payment to all existing and future
Subordinated Indebtedness of the Issuer; and only Indebtedness of the Issuer
that is Senior Indebtedness shall rank senior to the Notes in accordance with
the provisions set forth herein. All provisions of this Article 12 shall be
subject to Section 12.12.
Section
12.02
|
Liquidation,
Dissolution, Bankruptcy
.
|
Upon
any
payment or distribution of the assets of the Issuer to creditors upon a total
or
partial liquidation or dissolution of the Issuer or in a reorganization of,
or
similar proceeding relating to, the Issuer or its property:
(i)
the
holders of Senior Indebtedness of the Issuer shall be entitled to receive
payment in full in cash of such Senior Indebtedness before Holders shall be
entitled to receive any payment;
(ii)
until
the
Senior Indebtedness of the Issuer is paid in full in cash, any payment or
distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Holders may receive
Permitted Junior Securities; and
(iii)
if
a
distribution is made to Holders that, due to the subordination provisions of
this Indenture, should not have been made to them, such Holders will be required
to hold it in trust for the holders of Senior Indebtedness of the Issuer and
pay
it over to them as their interests may appear.
Section
12.03
|
Default
on Senior Indebtedness of the
Issuer
.
|
The
Issuer shall not pay principal of, premium, if any, or interest on the Notes
(or
pay any other Obligations relating to the Notes, including Special Interest,
fees, costs, expenses, indemnities and
rescission
or damage claims) or make any deposit pursuant to Article 8 or Article 11
hereof
and may not purchase, redeem or otherwise retire any Notes (collectively,
“
pay
the Notes
”)
(except in the form of Permitted Junior Securities) if either of the following
occurs (a “
Payment
Default
”):
(i)
any
Obligation on any Designated Senior Indebtedness of the Issuer is not paid
in
full in cash when due (after giving effect to any applicable grace period);
or
(ii)
any
other
default on Designated Senior Indebtedness of the Issuer occurs and the maturity
of such Designated Senior Indebtedness is accelerated in accordance with its
terms;
unless,
in either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has
been
discharged or paid in full in cash;
provided
,
however
,
that
the Issuer shall be entitled to pay the Notes without regard to the foregoing
if
the Issuer and the Trustee receive written notice approving such payment from
the Representatives of all Designated Senior Indebtedness with respect to which
the Payment Default has occurred and is continuing.
During
the continuance of any default other than a Payment Default (a “
Non-Payment
Default
”)
with
respect to any Designated Senior Indebtedness of the Issuer pursuant to which
the maturity thereof may be accelerated without further notice (except such
notice as may be required to effect such acceleration) or the expiration of
any
applicable grace periods, the Issuer shall not pay the Notes (except in the
form
of Permitted Junior Securities) for a period (a “
Payment
Blockage Period
”)
commencing upon the receipt by the Trustee (with a copy to the Issuer) of
written notice (a “
Blockage
Notice
”)
of
such Non-Payment Default from the Representative of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter. The Payment Blockage Period shall end earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee
and the Issuer from the Person or Persons who gave such Blockage Notice; (ii)
because the default giving rise to such Blockage Notice is cured, waived or
otherwise no longer continuing; or (iii) because such Designated Senior
Indebtedness has been discharged or repaid in full in cash.
Notwithstanding
the provisions described in the immediately preceding paragraph (but subject
to
the provisions contained in the first paragraph of this Section 12.03 and
Section 12.02 hereof), unless the holders of such Designated Senior Indebtedness
or the Representative of such Designated Senior Indebtedness shall have
accelerated the maturity of such Designated Senior Indebtedness, the Issuer
shall be entitled to resume paying the Notes after the end of such Payment
Blockage Period. The Notes shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period irrespective of the number
of
defaults with respect to Designated Senior Indebtedness of the Issuer during
such period;
provided
that if
any Blockage Notice is delivered to the Trustee by or on behalf of the holders
of Designated Senior Indebtedness of the Issuer (other than the holders of
Indebtedness under the Senior Credit Facilities), a Representative of holders
of
Indebtedness under the Senior Credit Facilities may give another Blockage Notice
within such period. However, in no event shall the total number of days during
which any Payment Blockage Period or Periods on the Notes is in effect exceed
179 days in the aggregate during any consecutive 360-day period, and there
must
be at least 181 days during any consecutive 360-day period during which no
Payment Blockage Period is in effect. Notwithstanding the foregoing, however,
no
Default that existed or was continuing on the date of delivery of any Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Blockage
Notice unless such default shall have been waived for a period of not less
than
90 consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants during the period after the date of delivery
of such initial Blockage Notice, that, in either case, would give rise to a
Non-Payment Default pursuant to
any
provisions under which a Non-Payment Default previously existed or was
continuing shall constitute a new Non-Payment Default for this
purpose).
Section
12.04
|
Acceleration
of Payment of Notes
.
|
If
payment of the Notes is accelerated because of an Event of Default, the Issuer
shall, or shall cause the Trustee to, promptly notify the holders of Designated
Senior Indebtedness of the Issuer or the Representative of such Designated
Senior Indebtedness of the acceleration;
provided
that any
failure to give such notice shall have no effect whatsoever on the provisions
of
this Article 12.
Section
12.05
|
When
Distribution Must Be Paid Over
.
|
If
a
distribution is made to Holders that, due to the subordination provisions of
this Article 12, should not have been made to them, such Holders are required
to
hold it in trust for the holders of Senior Indebtedness of the Issuer and pay
it
over to them as their interests may appear.
Section
12.06
|
Subrogation
.
|
After
all
Senior Indebtedness of the Issuer is paid in full and until the Notes are paid
in full, Holders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness.
A
distribution made under this Article 12 to holders of such Senior Indebtedness
which otherwise would have been made to Holders is not, as between the Issuer
and Holders, a payment by the Issuer on such Senior Indebtedness.
Section
12.07
|
Relative
Rights
.
|
This
Article 12 defines the relative rights of Holders and holders of Senior
Indebtedness of the Issuer. Nothing in this Indenture shall:
(i)
impair,
as between the Issuer and Holders, the obligation of the Issuer, which is
absolute and unconditional, to pay principal of and interest on the Notes in
accordance with their terms;
(ii)
prevent
the Trustee or any Holder from exercising its available remedies upon a Default,
subject to the rights of holders of Senior Indebtedness of the Issuer to receive
payments or distributions otherwise payable to Holders and such other rights
of
such holders of Senior Indebtedness as set forth herein; or
(iii)
affect
the relative rights of Holders and creditors of the Issuer other than their
rights in relation to holders of Senior Indebtedness.
Section
12.08
|
Subordination
May Not Be Impaired by Issuer
.
|
No
right
of any holder of Senior Indebtedness of the Issuer to enforce the subordination
of the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Issuer or by its failure to comply with this
Indenture.
Section
12.09
|
Rights
of Trustee and Paying Agent
.
|
Notwithstanding
Section 12.03 hereof, the Trustee or any Paying Agent may continue to make
payments on the Notes and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any payments unless, not less than
five Business Days prior to the date of such payment, a Responsible Officer
of
the Trustee receives notice satisfactory to it that payments may not be made
under this Article 12. The Issuer, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Issuer shall be
entitled to give the notice;
provided
,
however
,
that,
if an issue of Senior Indebtedness of the Issuer has a Representative, only
the
Representative shall be entitled to give the notice.
The
Trustee in its individual or any other capacity shall be entitled to hold Senior
Indebtedness of the Issuer with the same rights it would have if it were not
Trustee. The Registrar and the Paying Agent shall be entitled to do the same
with like rights. The Trustee shall be entitled to all the rights set forth
in
this Article 12 with respect to any Senior Indebtedness of the Issuer which
may
at any time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of
its
rights as such holder. Nothing in this Article 12 shall apply to claims of,
or
payments to, the Trustee under or pursuant to Section 7.07 hereof or any other
Section of this Indenture.
Section
12.10
|
Distribution
or Notice to Representative
.
|
Whenever
any Person is to make a distribution or give a notice to holders of Senior
Indebtedness of the Issuer, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any). Any such
Representative shall provide its contact information to the
Trustee.
Section
12.11
|
Article
12 Not To Prevent Events of Default or Limit Right To
Accelerate
.
|
The
failure to make a payment pursuant to the Notes by reason of any provision
in
this Article 12 shall not be construed as preventing the occurrence of a
Default. Nothing in this Article 12 shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Notes.
Section
12.12
|
Trust
Moneys Not Subordinated
.
|
Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Securities deposited in trust or with the Trustee, as applicable,
for the payment of principal of and interest on the Notes pursuant to Article
8
or Article 11 hereof shall not be subordinated to the prior payment of any
Senior Indebtedness of the Issuer or subject to the restrictions set forth
in
this Article 12, and none of the Holders shall be obligated to pay over any
such
amount to the Issuer or any holder of Senior Indebtedness of the Issuer or
any
other creditor of the Issuer,
provided
that the
subordination provisions of this Article 12 or Article 13 hereof were not
violated at the time the applicable amounts were deposited in trust pursuant
to
Article 8 or Article 11 hereof, as the case may be.
Section
12.13
|
Trustee
Entitled To Rely
.
|
Upon
any
payment or distribution pursuant to this Article 12, the Trustee and the Holders
shall be entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
12.02
hereof are pending, (b) upon a certificate of the
liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Holders or (c) upon the Representatives of Senior Indebtedness
of the Issuer for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Issuer, the amount thereof or
payable
thereon, the amount or amounts paid or distributed thereon and all other
facts
pertinent thereto or to this Article 12. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the
right
of any Person as a holder of Senior Indebtedness of the Issuer to participate
in
any payment or distribution pursuant to this Article 12, the Trustee shall
be
entitled to request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness
held by
such Person, the extent to which such Person is entitled to participate in
such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 12, and, if such evidence is not furnished, the Trustee
shall
be entitled to defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment. The provisions of
Sections 7.01 and 7.02 hereof shall be applicable to all actions or omissions
of
actions by the Trustee pursuant to this Article 12.
Section
12.14
|
Trustee
To Effectuate Subordination
.
|
Each
Holder by its acceptance of a Note agrees to be bound by this Article 12 and
authorizes and expressly directs the Trustee, on its behalf, to take such action
as may be necessary or appropriate to effectuate the subordination between
the
Holders and the holders of Senior Indebtedness of the Issuer as provided in
this
Article 12 and appoints the Trustee as attorney-in-fact for any and all such
purposes.
Section
12.15
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness of the
Issuer
.
|
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Issuer and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Issuer or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Issuer shall be entitled by virtue of this Article 12 or otherwise.
Section
12.16
|
Reliance
by Holders of Senior Indebtedness of the Issuer on Subordination
Provisions
.
|
Each
Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of the Issuer, whether
such Senior Indebtedness was created or acquired before or after the issuance
of
the Notes, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of the Issuer may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing
or
releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of the
Issuer, do any one or more of the following:
(i)
change
the manner, place or terms of payment or extend the time of payment of, or
renew
or alter, Senior Indebtedness of the Issuer, or otherwise amend or supplement
in
any
manner
Senior
Indebtedness of the Issuer, or any instrument evidencing the same or any
agreement under which Senior Indebtedness of the Issuer is
outstanding;
(ii)
sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness of the Issuer;
(iii)
release
any Person liable in any manner for the payment or collection of Senior
Indebtedness of the Issuer; and
(iv)
exercise
or refrain from exercising any rights against the Issuer and any other
Person.
ARTICLE
13
SUBORDINATION
OF GUARANTEES
Section
13.01
|
Agreement
To Subordinate
.
|
Each
Guarantor agrees, and each Holder by accepting a Note agrees, that the
obligations of such Guarantor under its Guarantee are subordinated in right
of
payment, to the extent and in the manner provided in this Article 13, to the
prior payment in cash in full of all existing and future Senior Indebtedness
of
such Guarantor and that the subordination is for the benefit of and enforceable
by the holders of such Senior Indebtedness. A Guarantor’s obligations under its
Guarantee shall in all respects rank
pari
passu
in right
of payment with all existing and future Senior Subordinated Indebtedness of
such
Guarantor, and will be senior in right of payment to all existing and future
Subordinated Indebtedness of such Guarantor; and only Indebtedness of such
Guarantor that is Senior Indebtedness shall rank senior to the obligations
of
such Guarantor under its Guarantee in accordance with the provisions set forth
herein. All provisions of this Article 13 shall be subject to Section
13.12.
Section
13.02
|
Liquidation,
Dissolution, Bankruptcy
.
|
Upon
any
payment or distribution of the assets of a Guarantor to creditors upon a total
or partial liquidation or dissolution of such Guarantor or in a reorganization
of, or similar proceeding relating to, such Guarantor or its
property:
(i)
the
holders of Senior Indebtedness of such Guarantor shall be entitled to receive
payment in full in cash of such Senior Indebtedness before Holders shall be
entitled to receive any payment;
(ii)
until
the
Senior Indebtedness of such Guarantor is paid in full in cash, any payment
or
distribution to which Holders would be entitled but for the subordination
provisions of this Indenture shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Holders may receive
Permitted Junior Securities; and
(iii)
if
a
distribution is made to Holders that, due to the subordination provisions of
this Indenture, should not have been made to them, such Holders will be required
to hold it in trust for the holders of Senior Indebtedness of such Guarantor
and
pay it over to them as their interests may appear.
Section
13.03
|
Default
on Senior Indebtedness of a
Guarantor
.
|
A
Guarantor shall not make any payment pursuant to its Guarantee (or pay any
other
Obligations relating to its Guarantee, including Special Interest, fees, costs,
expenses, indemnities and rescission or damage claims) and may not purchase,
redeem or otherwise retire any Notes (collectively, “
pay
its Guarantee
”)
(except in the form of Permitted Junior Securities) if either of the following
occurs (a “
Guarantor
Payment Default
”):
(i)
any
Obligation on any Designated Senior Indebtedness of such Guarantor is not paid
in full in cash when due (after giving effect to any applicable grace period);
or
(ii)
any
other
default on Designated Senior Indebtedness of such Guarantor occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms;
unless,
in either case, the Guarantor Payment Default has been cured or waived and
any
such acceleration has been rescinded or such Designated Senior Indebtedness
has
been discharged or paid in full in cash;
provided
,
however
,
that
such Guarantor shall be entitled to pay its Guarantee without regard to the
foregoing if such Guarantor and the Trustee receive written notice approving
such payment from the Representatives of all Designated Senior Indebtedness
with
respect to which the Guarantor Payment Default has occurred and is
continuing.
During
the continuance of any default (other than a Guarantor Payment Default) (a
“
Guarantor
Non-Payment Default
”)
with
respect to any Designated Senior Indebtedness of a Guarantor pursuant to which
the maturity thereof may be accelerated without further notice (except such
notice as may be required to effect such acceleration) or the expiration of
any
applicable grace periods, such Guarantor shall not pay its Guarantee (except
in
the form of Permitted Junior Securities) for a period (a “
Guarantee
Payment Blockage Period
”)
commencing upon the receipt by the Trustee (with a copy to such Guarantor and
the Issuer) of written notice (a “
Guarantee
Blockage Notice
”)
of
such Guarantor Non-Payment Default from the Representative of such Designated
Senior Indebtedness specifying an election to effect a Guarantee Payment
Blockage Period and ending 179 days thereafter. The Guarantee Payment Blockage
Period shall end earlier if such Guarantee Payment Blockage Period is terminated
(i) by written notice to the Trustee, the relevant Guarantor and the Issuer
from
the Person or Persons who gave such Guarantee Blockage Notice; (ii) because
the
default giving rise to such Guarantee Blockage Notice is cured, waived or
otherwise no longer continuing; or (iii) because such Designated Senior
Indebtedness has been discharged or repaid in full in cash.
Notwithstanding
the provisions described in the immediately preceding paragraph (but subject
to
the provisions contained in the first sentence of this Section 13.03 and Section
13.02 hereof), unless the holders of such Designated Senior Indebtedness or
the
Representative of such Designated Senior Indebtedness shall have accelerated
the
maturity of such Designated Senior Indebtedness, the relevant Guarantor shall
be
entitled to resume paying its Guarantee after the end of such Guarantee Payment
Blockage Period. Each Guarantee shall not be subject to more than one Guarantee
Payment Blockage Period in any consecutive 360-day period irrespective of the
number of defaults with respect to Designated Senior Indebtedness of the
relevant Guarantor during such period;
provided
that if
any Guarantee Blockage Notice is delivered to the Trustee by or on behalf of
the
holders of Designated Senior Indebtedness of such Guarantor (other than the
holders of Indebtedness under the Senior Credit Facilities), a Representative
of
holders of Indebtedness under the Senior Credit Facilities may give another
Guarantee Blockage Notice within such period. However, in no event shall the
total number of days during which any Guarantee Payment Blockage Period or
Periods on a Guarantee is in effect exceed
179
days
in the aggregate during any consecutive 360-day period, and there must be
at
least 181 days during any consecutive 360-day period during which no Guarantee
Payment Blockage Period is in effect. Notwithstanding the foregoing, however,
no
default that existed or was continuing on the date of delivery of any Guarantee
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Guarantee Blockage Notice unless such default shall have been waived for
a
period of not less than 90 consecutive days (it being acknowledged that any
subsequent action, or any breach of any financial covenants during the period
after the date of delivery of such initial Guarantee Blockage Notice, that,
in
either case, would give rise to a Guarantor Non-Payment Default pursuant
to any
provisions under which a Guarantor Non-Payment Default previously existed
or was
continuing shall constitute a new Guarantor Non-Payment Default for this
purpose).
Section
13.04
|
Acceleration
of Payment of Notes
.
|
If
payment of the Notes is accelerated because of an Event of Default, the Issuer
or such Guarantor shall, or shall cause the Trustee to, promptly notify the
holders of the Designated Senior Indebtedness of such Guarantor or the
Representative of such Designated Senior Indebtedness of the acceleration;
provided
that any
failure to give such notice shall have no effect whatsoever on the provisions
of
this Article 13.
Section
13.05
|
When
Distribution Must Be Paid Over
.
|
If
a
distribution is made to Holders that, due to the subordination provisions of
this Article 13, should not have been made to them, such Holders are required
to
hold it in trust for the holders of Senior Indebtedness of the relevant
Guarantor and pay it over to them as their interests may appear.
Section
13.06
|
Subrogation
.
|
After
all
Senior Indebtedness of a Guarantor is paid in full and until the Notes are
paid
in full, Holders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness.
A
distribution made under this Article 13 to holders of such Senior Indebtedness
which otherwise would have been made to Holders is not, as between the relevant
Guarantor and Holders, a payment by such Guarantor on such Senior
Indebtedness.
Section
13.07
|
Relative
Rights
.
|
This
Article 13 defines the relative rights of Holders and holders of Senior
Indebtedness of a Guarantor. Nothing in this Indenture shall:
(i)
impair,
as between such Guarantor and Holders, the obligation of such Guarantor, which
is absolute and unconditional, to make
payments
under its Guarantee in
accordance with its terms;
(ii)
prevent
the Trustee or any Holder from exercising its available remedies upon a default
by such Guarantor under its obligations with
respect
to its Guarantee, subject
to the rights of holders of Senior Indebtedness of such Guarantor to receive
payments or distributions otherwise
payable
to Holders and such other
rights of such holders of Senior Indebtedness as set forth herein;
or
(iii)
affect
the relative rights of Holders and creditors of such Guarantor other than their
rights in relation to holders of Senior
Indebtedness.
Section
13.08
|
Subordination
May Not Be Impaired by a
Guarantor
.
|
No
right
of any holder of Senior Indebtedness of a Guarantor to enforce the subordination
of the obligations of such Guarantor under its Guarantee shall be impaired
by
any act or failure to act by such Guarantor or by its failure to comply with
this Indenture.
Section
13.09
|
Rights
of Trustee and Paying Agent
.
|
Notwithstanding
Section 13.03 hereof, the Trustee or any Paying Agent may continue to make
payments on the Notes and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any payments unless, not less than
five Business Days prior to the date of such payment, a Responsible Officer
of
the Trustee receives notice satisfactory to him that payments may not be made
under this Article 13. Each Guarantor, the Registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of such Guarantor shall be
entitled to give the notice;
provided
,
however
,
that,
if an issue of Senior Indebtedness of such Guarantor has a Representative,
only
the Representative shall be entitled to give the notice.
The
Trustee in its individual or any other capacity shall be entitled to hold Senior
Indebtedness of any Guarantor with the same rights it would have if it were
not
Trustee. The Registrar and the Paying Agent shall be entitled to do the same
with like rights. The Trustee shall be entitled to all the rights set forth
in
this Article 13 with respect to any Senior Indebtedness of any Guarantor which
may at any time be held by it, to the same extent as any other holder of such
Senior Indebtedness; and nothing in Article 7 shall deprive the Trustee of
any
of its rights as such holder. Nothing in this Article 13 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.07 hereof or
any
other Section of this Indenture.
Section
13.10
|
Distribution
or Notice to Representative
.
|
Whenever
any Person is to make a distribution or give a notice to holders of Senior
Indebtedness of a Guarantor, such Person shall be entitled to make such
distribution or give such notice given to their Representative (if any). Any
such Representative shall provide its contact information to the
Trustee.
Section
13.11
|
Article
13 Not To Prevent Events of Default or Limit Right To Demand
Payment
.
|
The
failure of a Guarantor to make a payment pursuant its Guarantee by reason of
any
provision in this Article 13 shall not be construed as preventing the occurrence
of a default by such Guarantor under its Guarantee. Nothing in this Article
13
shall have any effect on the right of the Holders or the Trustee to make a
demand for payment on a Guarantor pursuant to Article 10 hereof.
Section
13.12
|
Trust
Moneys Not Subordinated
.
|
Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of Government Securities deposited in trust or with the Trustee, as applicable,
for the payment of principal of and interest on the Notes pursuant to Article
8
or Article 11 hereof shall not be subordinated to the prior payment of any
Senior Indebtedness of any Guarantor or subject to the restrictions set forth
in
this Article 13, and none of the Holders shall be obligated to pay over any
such
amount to such Guarantor or any holder of Senior Indebtedness of such Guarantor
or any other creditor of such Guarantor,
provided
that the
subordination provisions of Article 12 hereof or this Article 13 were not
violated
at the time the applicable amounts were deposited in trust pursuant to Article
8
or Article 11 hereof, as the case may be.
Section
13.13
|
Trustee
Entitled To Rely
.
|
Upon
any
payment or distribution pursuant to this Article 13, the Trustee and the Holders
shall be entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
13.02
hereof are pending, (b) upon a certificate of the liquidating trustee or agent
or other Person making such payment or distribution to the Trustee or to the
Holders or (c) upon the Representatives of Senior Indebtedness of a Guarantor
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of such Senior Indebtedness and other
Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13. In the event that the Trustee determines, in
good
faith, that evidence is required with respect to the right of any Person as
a
holder of Senior Indebtedness of a Guarantor to participate in any payment
or
distribution pursuant to this Article 13, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 13, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination
as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 hereof shall be applicable to all actions or omissions of actions
by the Trustee pursuant to this Article 13.
Section
13.14
|
Trustee
To Effectuate Subordination
.
|
Each
Holder by its acceptance of a Note agrees to be bound by this Article 13 and
authorizes and expressly directs the Trustee, on its behalf, to take such action
as may be necessary or appropriate to effectuate the subordination between
the
Holders and the holders of Senior Indebtedness of a Guarantor as provided in
this Article 13 and appoints the Trustee as attorney-in-fact for any and all
such purposes.
Section
13.15
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness of
Guarantors
.
|
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of any Guarantor and shall not be liable to any such holders if
it
shall mistakenly pay over or distribute to Holders or such Guarantor or any
other Person, money or assets to which any holders of Senior Indebtedness of
such Guarantor shall be entitled by virtue of this Article 13 or
otherwise.
Section
13.16
|
Reliance
by Holders of Senior Indebtedness of a Guarantor on Subordination
Provisions
.
|
Each
Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of a Guarantor, whether
such Senior Indebtedness was created or acquired before or after the issuance
of
the Notes, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of any Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing
or
releasing the subordination provided in this Article 13 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of such
Guarantor, do any one or more of the following:
(i)
change
the manner, place or terms of payment or extend the time of payment of, or
renew
or alter, Senior Indebtedness of such Guarantor, or otherwise amend or
supplement in any manner Senior Indebtedness of such Guarantor, or any
instrument evidencing the same or any agreement under which Senior Indebtedness
of such Guarantor is outstanding;
(ii)
sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness of such Guarantor;
(iii)
release
any Person liable in any manner for the payment or collection of Senior
Indebtedness of such Guarantor; and
(iv)
exercise
or refrain from exercising any rights against such Guarantor and any other
Person.
ARTICLE
14
MISCELLANEOUS
Section
14.01
|
Trust
Indenture Act Controls
.
|
If
any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Trust Indenture Act Section 318(c), the imposed duties shall
control.
Any
notice or communication by the Issuer, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), fax or
overnight air courier guaranteeing next day delivery, to the others’
address:
If
to the
Issuer and/or any Guarantor:
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
If
to the
Trustee:
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
The
Issuer, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five calendar days after being deposited in the mail, postage prepaid, if mailed
by first-class mail; when receipt acknowledged, if faxed; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery;
provided
that any
notice or communication delivered to the Trustee shall be deemed effective
upon
actual receipt thereof.
Any
notice or communication to a Holder shall be mailed by first-class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by
the
Registrar. Any notice or communication shall also be so mailed to any Person
described in Trust Indenture Act Section 313(c), to the extent required by
the
Trust Indenture Act. Failure to mail a notice or communication to a Holder
or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If
a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Issuer mails a notice or communication to Holders, it shall mail a copy to
the
Trustee and each Agent at the same time.
Section
14.03
|
Communication
by Holders of Notes with Other Holders of
Notes
.
|
Holders
may communicate pursuant to Trust Indenture Act Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Registrar and anyone else shall have the protection
of
Trust Indenture Act Section 312(c).
Section
14.04
|
Certificate
and Opinion as to Conditions
Precedent
.
|
(a)
Upon
any
request or application by the Issuer or any of the Guarantors to the Trustee
to
take any action under this Indenture, the Issuer or such Guarantor, as the
case
may be, shall furnish to the Trustee:
(b)
An
Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 14.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(c)
An
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 14.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section
14.05
|
Statements
Required in Certificate or
Opinion
.
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
Section 4.04 hereof or Trust Indenture Act Section 314(a)(4)) shall comply
with
the provisions of Trust Indenture Act Section 314(e) and shall
include:
(a)
a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b)
a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c)
a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with (and, in the case of an Opinion of Counsel, may be limited to
reliance on an Officer’s Certificate as to matters of fact); and
(d)
a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been complied with.
Section
14.06
|
Rules
by Trustee and Agents
.
|
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
14.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
.
|
No
director, officer, employee, incorporator or stockholder of the Issuer or any
Guarantor or any of their parent companies (other than the Issuer and the
Guarantors) shall have any liability for any obligations of the Issuer or the
Guarantors under the Notes, the Guarantees or this Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each Holder by accepting the Notes waives and releases all such liability.
The
waiver and release are part of the consideration for issuance of the
Notes.
Section
14.08
|
Governing
Law
.
|
THIS
INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
14.09
|
Waiver
of Jury Trial
.
|
EACH
OF
THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF
OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section
14.10
|
Force
Majeure
.
|
In
no
event shall the Trustee be responsible or liable for any failure or delay in
the
performance of its obligations under this Indenture arising out of or caused
by,
directly or indirectly, forces beyond its reasonable control, including without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software or hardware) services.
Section
14.11
|
No
Adverse Interpretation of Other
Agreements
.
|
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Issuer or its Restricted Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section
14.12
|
Successors
.
|
All
agreements of the Issuer in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors, except as otherwise provided in Section 10.06 hereof.
Section
14.13
|
Severability
.
|
In
case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
14.14
|
Counterpart
Originals
.
|
The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same
agreement.
Section
14.15
|
Table
of Contents, Headings, etc
.
|
The
Table
of Contents, Cross-Reference Table and headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
Section
14.16
|
Qualification
of Indenture
.
|
The
Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture
Act in accordance with the terms and conditions of the Registration Rights
Agreement and shall pay all reasonable costs and expenses (including attorneys’
fees and expenses for the Issuer, the Guarantors and the Trustee) incurred
in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture and
the Notes. The Trustee shall be entitled to receive from the Issuer and the
Guarantors any such Officer’s Certificates, Opinions of
Counsel
or other documentation as it may reasonably request in connection with any
such
qualification of this Indenture under the Trust Indenture Act.
[Signatures
on following pages]
BUCK
ACQUISITION CORP.
By:
/s/
Raj Agrawal
Name:
Raj
Agrawal
Title:
Vice
President
DOLLAR
GENERAL CORPORATION
By:
/s/
Wade Smith
Name:
Wade
Smith
Title:
Vice
President
Signature
Page to Indenture
Each
of
the GUARANTORS
listed
on
Schedule I hereto
By:
/s/
Wade Smith
Name:
Wade
Smith
Title:
Tr
easurer
Signature
Page to Indenture
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Trustee
By:
/s/
Maddy Hall
Name:
Maddy
Hall
Title:
Assistant
Vice President
SCHEDULE
I
Guarantors
DG
Retail, LLC
Dolgencorp,
Inc.
Dolgencorp
of New York, Inc.
Dolgencorp
of Texas, Inc.
DG
Transportation, Inc.
DG
Logistics LLC
DGC
Properties LLC
South
Boston Holdings, Inc.
Sun
Dollar, L.P.
South
Boston FF&E, LLC
DG
Promotions, Inc. [f/k/a Nations Title Company, Inc.]
Dollar
General Investment, Inc.
Dollar
General Merchandising, Inc. [f/k/a Lonestar Administrative Services,
Inc.]
Dollar
General Partners
DGC
Properties of Kentucky, LLC
EXHIBIT
A
[Face
of
Note]
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the OID Legend, if applicable pursuant to the provisions of the
Indenture]
CUSIP
[
]
[[RULE
144A][REGULATION S] GLOBAL NOTE
11.875%
/
12.625% Senior Subordinated Toggle Notes due 2017
No.
___
[$______________]
BUCK
ACQUISITION CORP.
promises
to pay to CEDE & CO. or registered assigns, the principal sum [set forth on
the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of
________________________ United States Dollars] on July 15, 2017.
Interest
Payment Dates: January 15 and July 15
Record
Dates: January 1 and July 1
1
Rule
144A Note CUSIP: [ ]
Rule
144A
Note ISIN: [ ]
Regulation
S Note CUSIP: [ ]
Regulation
S Note ISIN: [ ]
Exchange
Note CUSIP: [ ]
Exchange
Note ISIN: [ ]
IN
WITNESS HEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
July 6, 2007
BUCK
ACQUISITION
CORP.
By:
Name:
Title:
This
is
one of the Notes referred to in the within-mentioned Indenture.
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
By:
Authorized
Signatory
[Back
of
Note]
11.875%
/
12.625% Senior Subordinated Notes due 2017
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1.
INTEREST.
Buck Acquisition Corp., a Tennessee corporation, promises to pay interest on
the
principal amount of this Note as follows: Cash Interest on the Notes will accrue
at a rate of 11.875% per annum and be payable in cash. PIK Interest on the
Notes
will accrue at a rate of 12.625% per annum and be payable (x) with respect
to Notes represented by one or more global notes registered in the name of,
or
held by, The Depository Trust Company (“
DTC
”)
or its
nominee on the relevant record date, by increasing the principal amount of
the
outstanding global Note by an amount equal to the amount of PIK Interest for
the
applicable interest period (rounded up to the nearest $1,000) and (y) with
respect to Notes represented by certificated notes, by issuing PIK Notes in
certificated form in an aggregate principal amount equal to the amount of PIK
Interest for the applicable period (rounded up to the nearest whole dollar),
and
the Trustee will, at the request of the Issuer, authenticate and deliver such
PIK Notes in certificated form for original issuance to the Holders on the
relevant record date, as shown by the records of the register of Holders. In
the
event that the Issuer elects to pay Partial PIK Interest for any interest
period, each Holder will be entitled to receive Cash Interest in respect of
50%
of the principal amount of the Notes held by such Holder on the relevant record
date and PIK Interest in respect of 50% of the principal amount of the Notes
held by such Holder on the relevant record date. Following an increase in the
principal amount of the outstanding global Notes as a result of a PIK Payment,
the global Notes will bear interest on such increased principal amount from
and
after the date of such PIK Payment. Any PIK Notes issued in certificated form
will be dated as of the applicable interest payment date and will bear interest
from and after such date. All Notes issued pursuant to a PIK Payment will mature
on July 15, 2017 and will be governed by, and subject to the terms, provisions
and conditions of, the Indenture and shall have the same rights and benefits
as
the Notes issued on the Issue Date. Any certificated PIK Notes will be issued
with the description “PIK” on the face of such PIK Note.
The
Issuer will pay interest and Special Interest, if any, semi-annually in arrears
on January 15 and July 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an “
Interest
Payment Date
”).
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided
that the
first Interest Payment Date shall be January 15, 2008. The Issuer will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time
on
demand at the interest rate on the Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, (without regard to any
applicable grace periods) from time to time on demand at the interest rate
on
the Notes. Interest will be computed on the basis of a 360-day year comprised
of
twelve 30-day months.
2.
METHOD
OF
PAYMENT. For any interest payment period after the initial interest payment
period and prior to July 15, 2011, the Issuer may, at its option, elect to
pay
interest on the Notes:
·
|
entirely
in cash (“
Cash
Interest
”);
|
·
|
entirely
by increasing the principal amount of the outstanding Notes or by
issuing
PIK Notes (“
PIK
Interest
”);
or
|
·
|
on
50% of the outstanding principal amount of the Notes in cash and
on 50% of
the principal amount by increasing the principal amount of the outstanding
Notes or by issuing PIK Notes (“
Partial
PIK Interest
”).
|
The
Issuer must elect the form of interest payment with respect to each interest
period by delivering a notice to the Trustee at least 30 days prior to the
beginning of each interest period. The Trustee shall promptly deliver a
corresponding notice to the Holders. In the absence of such an election for
any
interest period, interest on the Notes shall be payable according to the
election for the previous interest period. Interest for the first interest
period commencing on the Issue Date shall be payable entirely in cash. After
July 15, 2011, the Issuer will make all interest payments on the Notes entirely
in cash. Notwithstanding anything to the contrary, the payment of accrued
interest in connection with any redemption of Notes as described under Sections
3.07, 4.10 and 4.14 of the Indenture shall be made solely in cash.
The
Issuer will pay Cash Interest on the Notes and Special Interest, if any, to
the
Persons who are registered Holders of Notes at the close of business on January
1 and July 1 (whether or not a Business Day), as the case may be, next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. Payment of interest
and Special Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders,
provided
that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Special Interest, if any,
on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Issuer or the Paying Agent. Such payment
shall
be in such coin or currency of the United States of America as at the time
of
payment is legal tender for payment of public and private debts.
3.
PAYING
AGENT AND REGISTRAR. Initially, Wells Fargo Bank, National Association, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to the Holders. The
Issuer or any of its Subsidiaries may act in any such capacity.
4.
INDENTURE.
The Issuer issued the Notes under an Indenture, dated as of July 6, 2007 (the
“
Indenture
”),
among
Buck Acquisition Corp., Dollar General Corporation, the Guarantors named therein
and the Trustee. This Note is one of a duly authorized issue of notes of the
Issuer designated as its 11.875% / 12.625% Senior Subordinated Toggle Notes
due
2017. The Issuer shall be entitled to issue Additional Notes pursuant to
Sections 2.01 and 4.09 of the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (the “
Trust
Indenture Act
”).
The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of
this
Note conflicts with the express provisions of the Indenture, the provisions
of
the Indenture shall govern and be controlling.
5.
OPTIONAL
REDEMPTION.
(a)
Except
as
set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to July 15, 2012.
(b)
At
any
time prior to July 15, 2012, the Issuer may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class
mail to the registered address of each Holder of Notes or otherwise in
accordance with the procedures of DTC, at a redemption price equal to 100%
of
the principal amount of the Notes redeemed plus the Applicable Premium as of,
and accrued and unpaid interest and Special Interest, if any, to the date of
redemption (the “
Redemption
Date
”),
subject to the rights of Holders of Notes on the relevant record date to receive
interest due on the relevant interest payment date.
(c)
On
and
after July 15, 2012, the Issuer may redeem the Notes, in whole or in part,
upon
not less than 30 nor more than 60 days’ prior notice mailed by first-class mail
to the registered address of each Holder of Notes or otherwise in accordance
with the procedures of DTC, at the redemption prices (expressed as percentages
of principal amount of the Notes to be redeemed) set forth below, plus accrued
and unpaid interest thereon and Special Interest, if any, to the applicable
Redemption Date, subject to the right of Holders of Notes of record on the
relevant record date to receive interest due on the relevant interest payment
date, if redeemed during the twelve-month period beginning on January 15 of
each
of the years indicated below:
Year
|
Percentage
|
2012..........................................................................................................................
|
105.938%
|
2013..........................................................................................................................
|
103.958%
|
2014
and
thereafter....................................................................................................
|
101.979%
|
2015
and
thereafter....................................................................................................
|
100.000%
|
(d)
In
addition, until July 15, 2010, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Notes at a
redemption price equal to 111.875% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon and Special Interest, if any, to the
applicable Redemption Date, subject to the right of Holders of Notes of record
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at
least 50% of the sum of the original aggregate principal amount of Notes issued
under the Indenture and the original principal amount of any Additional Notes
that are Notes issued under the Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
provided
further
that
each such redemption occurs within 90 days of the date of closing of each such
Equity Offering.
(e)
Any
notice of any redemption may be given prior to the redemption thereof, and
any
such redemption or notice may, at the Issuer’s discretion, be subject to one or
more conditions precedent, including, but not limited to, completion of an
Equity Offering or other corporate transaction.
(f)
If
the
Issuer redeems less than all of the outstanding Notes, the Trustee shall select
the Notes to be redeemed in the manner described under Section 3.02 of the
Indenture.
(g)
Any
redemption pursuant to this paragraph 5 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 of the Indenture.
6.
MANDATORY
REDEMPTION. Except as set forth below, the Issuer shall not be required to
make
mandatory redemption or sinking fund payments with respect to the
Notes.
If
the
Notes would otherwise constitute “applicable high yield discount obligations”
within the meaning of Section 163(i)(1) of the Code, at the end of each
accrual period ending after the fifth
anniversary
of the Notes' issuance (each, an “
AHYDO
redemption date
”),
the
Issuer will be required to redeem for cash a portion of each Note then
outstanding equal to the “Mandatory Principal Redemption Amount” (such
redemption, a “
Mandatory
Principal Redemption
”).
The
redemption price for the portion of each Note redeemed pursuant to a Mandatory
Principal Redemption will be 100% of the principal amount of such portion
plus
any accrued interest thereon on the date of redemption. The “
Mandatory
Principal Redemption Amount
”
means,
as of each AHYDO redemption date, the excess, if any, of (a) the aggregate
amount of accrued and unpaid interest and all accrued and unpaid “original issue
discount” (as defined in Section 1273(a)(1) of the Code) with respect to
the Notes, over (b) an amount equal to the product of (i) the “issue
price” (as defined in Sections 1273(b) and 1274(a) of the Code) of the Notes
multiplied by (ii) the “yield to maturity” (as defined in the Treasury
Regulation Section 1.1272-1(b)(1)(i)) of the Notes. No partial redemption
or repurchase of the senior subordinated toggle notes prior to any AHYDO
redemption date pursuant to any other provision of this Indenture will alter
the
Issuer's obligation to make any Mandatory Principal Redemption with respect
to
any Notes that remain outstanding on such AHYDO redemption
date.
7.
NOTICE
OF
REDEMPTION. Subject to Section 3.03 of the Indenture, notice of redemption
will
be mailed by first-class mail at least 30 days but not more than 60 days before
the redemption date (except that redemption notices may be mailed more than
60
days prior to a redemption date if the notice is issued in connection with
Article 8 of the Indenture) to each Holder whose Notes are to be redeemed at
its
registered address. Notes in denominations larger than $2,000 may be redeemed
in
part but only in whole multiples of $1,000 in excess thereof, unless all of
the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
8.
OFFERS
TO
REPURCHASE.
(a)
Upon
the
occurrence of a Change of Control, the Issuer shall make an offer (a
“
Change
of Control Offer
”)
to
each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Special Interest thereon, if any, to the date of purchase (the
“
Change
of Control Payment
”).
The
Change of Control Offer shall be made in accordance with Section 4.14 of the
Indenture.
(b)
If
the
Issuer or any of its Restricted Subsidiaries consummates an Asset Sale, within
10 Business Days of each date that the aggregate amount of Excess Proceeds
exceeds $75.0 million, the Issuer shall make an offer to all Holders of the
Notes and, if required or permitted by the terms of any Senior Indebtedness,
to
the holders of such Senior Indebtedness (an “
Asset
Sale Offer
”),
to
purchase the maximum aggregate principal amount of the Notes and such Senior
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000
in
excess thereof that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any, to the date fixed
for
the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and such Senior
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate
purposes, subject to other covenants contained in the Indenture. If the
aggregate principal amount of Notes or Senior Indebtedness surrendered by such
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and such Senior Indebtedness to be purchased on a
pro
rata
basis
based on the accreted value or principal amount of the Notes or such Senior
Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount
of Excess Proceeds shall be reset at zero.
(c)
The
Issuer may, at its option, make an Asset Sale Offer using proceeds from any
Asset Sale at any time after consummation of such Asset Sale;
provided
that
such
Asset Sale Offer shall be in an aggregate amount of not less than
$75.0 million. Upon consummation of such Asset Sale Offer, any Net Proceeds
not required to be used to purchase Notes shall not be deemed Excess
Proceeds.
9.
DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The
transfer of Notes may be registered and Notes may be exchanged as provided
in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Notes or portion of Notes selected for redemption, except for
the unredeemed portion of any Notes being redeemed in part. Also, the Issuer
need not exchange or register the transfer of any Notes for a period of 15
days
before a selection of Notes to be redeemed.
10.
PERSONS
DEEMED OWNERS. The registered Holder of Notes may be treated as its owner for
all purposes.
11.
AMENDMENT,
SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be amended
or supplemented as provided in the Indenture.
12.
DEFAULTS
AND REMEDIES. The Events of Default relating to the Notes are defined in Section
6.01 of the Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 30% in principal amount of the then
outstanding Notes may declare the principal, premium, if any, interest and
any
other monetary obligations on all the then outstanding Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of an Event
of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable immediately without further action or notice.
Holders may not enforce the Indenture, the Notes or the Guarantees except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default (except a Default relating
to the payment of principal, premium, if any, Special Interest, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the
Notes waive any existing Default or and its consequences under the Indenture
except a continuing Default in payment of the principal of, premium, if any,
Special Interest, if any, or interest on, any of the Notes held by a
non-consenting Holder. The Issuer and each Guarantor (to the extent that such
Guarantor is so required under the Trust Indenture Act) is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture,
and
the Issuer is required within five (5) Business Days after becoming aware of
any
Default, to deliver to the Trustee a statement specifying such Default and
what
action the Issuer proposes to take with respect thereto.
13.
AUTHENTICATION.
This Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose until authenticated by the manual signature of
the
Trustee.
14.
ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes shall have all the
rights
set
forth
in the Registration Rights Agreement, dated as of July 6, 2007, among Buck
Acquisition Corp., Dollar General Corporation, the Guarantors named therein
and
the other parties named on the signature pages thereof (the “
Registration
Rights Agreement
”),
including the right to receive Special Interest (as defined in the Registration
Rights Agreement).
15.
GOVERNING
LAW. THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16.
CUSIP/ISIN
NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers
to
be printed on the Notes and the Trustee may use CUSIP/ISIN numbers in notices
of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in
any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The
Issuer will furnish to any Holder upon written request and without charge a
copy
of the Indenture and/or the Registration Rights Agreement. Requests may be
made
to the Issuer at the following address:
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note to:
(Insert
assignee’s
legal name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
and
irrevocably appoint
to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.
Date:
_____________________
Your
Signature:
(Sign
exactly as your
name appears on
the
face of this Note)
Signature
Guarantee*: __________________________________
*
Participant in a recognized Signature Guarantee Medallion Program (or
other
signature
guarantor acceptable to the Trustee).
OPTION
OF
HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Note purchased by the Issuer pursuant to
Section 4.10 or 4.14 of the Indenture, check the appropriate box
below:
[ ]
Section 4.10
[ ]
Section 4.14
If
you
want to elect to have only part of this Note purchased by the Issuer pursuant
to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to
have purchased:
$_______________
Date:
_____________________
Your
Signature:
(Sign
exactly
as your name appears on
the
face of this Note)
Tax
Identification No.:
Signature
Guarantee*: __________________________________
*
Participant in a recognized Signature Guarantee Medallion Program (or
other
signature
guarantor acceptable to the Trustee).
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The
initial outstanding principal amount of this Global Note is $__________. The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
or Definitive Note for an interest in this Global Note, have been
made:
Date
of Exchange
|
Amount
of decrease
in
Principal Amount
|
Amount
of increase
in
Principal
Amount
of this
Global
Note
|
Principal
Amount of
this
Global Note
following
such
decrease
or increase
|
Signature
of
authorized
officer
of
Trustee or
Custodian
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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__________________
*This
schedule should be included only if the Note is issued in global
form.
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRANSFER
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
Re:
11.875% / 12.625% Senior Subordinated Toggle Notes due 2017
Reference
is hereby made to the Indenture, dated as of July 6, 2007 (the “
Indenture
”),
among
Buck Acquisition Corp., the Guarantors named therein and the Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Indenture.
_______________
(the “
Transferor
”)
owns
and proposes to transfer the Note[s] or interest in such Note[s] specified
in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “
Transfer
”),
to
_______________ (the “
Transferee
”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the “
Securities
Act
”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note
for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account
is a
“qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United
States.
2.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction
was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii)
no
directed selling efforts have been made in contravention of the requirements
of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii)
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not
being
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated
in
the Indenture and the Securities Act.
3.
[ ]
CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN
THE DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN
RULE 144A OR REGULATION S. The Transfer is being effected in compliance with
the
transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with
the
Securities Act and any applicable blue sky securities laws of any state of
the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a)
[ ]
such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b)
[ ]
such Transfer is being effected to the Issuer or a subsidiary
thereof;
or
(c)
[ ]
such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.
4.
[ ]
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a)
[ ]
CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in
the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b)
[ ]
CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue
sky
securities laws of any state of the United States and (ii) the restrictions
on
transfer contained in the Indenture and the Private Placement Legend are
not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c)
[ ]
CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904
and
in compliance with the transfer restrictions contained in the Indenture and
any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer.
[Insert
Name of
Transferor]
By:
Name:
Title:
Dated:
_______________________
ANNEX
A
TO CERTIFICATE OF TRANSFER
1.
The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
(a)
[ ]
a beneficial interest in the:
(i)
[ ]
144A Global Note (CUSIP [
] [
]
[
]), or
(ii)
[ ]
Regulation S Global Note (CUSIP [
] [
]
[
]),
or
(b)
[ ]
a Restricted Definitive Note.
2.
After
the
Transfer the Transferee will hold:
[CHECK
ONE]
(a)
[ ]
a beneficial interest in the:
(i)
[ ]
144A Global Note (CUSIP [
] [
]
[
]),
or
(ii)
[ ]
Regulation S Global Note (CUSIP [
]
[
]
[
]),
or
(iii)
[ ]
Unrestricted Global Note (CUSIP [
]
[
]
[
]);
or
(b)
[ ]
a Restricted Definitive Note; or
|
(c)
|
[ ]
an Unrestricted Definitive Note,
|
in
accordance with the terms of the Indenture.
EXHIBIT
C
FORM
OF
CERTIFICATE OF EXCHANGE
c/o
Dollar General Corporation
100
Mission Ridge
Goodletsville,
Tennessee 37072
Fax
No.:
615-855-5180
Attention:
General Counsel
Wells
Fargo Bank, National Association
Corporate
Trust Department
707
Wilshire Blvd, 17
th
Floor
Los
Angeles, CA 90017
Fax
No.:
213-614-3355
Attention:
Madeliena Hall
Re:
11.875% / 12.625% Senior Subordinated Toggle Notes due 2017
Reference
is hereby made to the Indenture, dated as of July 6, 2007 (the “
Indenture
”),
among
Buck Acquisition Corp., the Guarantors named therein and the Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Indenture.
___________
(the “
Owner
”)
owns
and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $__________ in such Note[s] or interests
(the
“
Exchange
”).
In
connection with the Exchange, the Owner hereby certifies that:
1)
EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL
NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL NOTE
a)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for
the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933,
as
amended (the “
Securities
Act
”),
(iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws
of
any state of the United States.
b)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive
Note
is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions
applicable
to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the
Indenture
and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act
and (iv) the Definitive Note is
being
acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
c)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN
AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United
States.
d)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE
NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2)
EXCHANGE
OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES
a)
[ ]
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner’s own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of
the
Indenture, the Restricted Definitive Note issued will continue to be subject
to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities
Act.
b)
[ ]
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN A
RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [
] 144A Global Note [ ] Regulation S Global Note,
with
an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the
Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and are dated ____________________.
[Insert
Name of
Transferor]
By:
Name:
Title:
Dated:
_______________________
EXHIBIT
D
[FORM
OF
SUPPLEMENTAL INDENTURE
TO
BE
DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental
Indenture (this “
Supplemental
Indenture
”),
dated
as of __________, among __________________ (the “
Guaranteeing
Subsidiary
”),
a
subsidiary of Dollar General Corporation, a Tennessee Corporation (the
“
Issuer
”),
and
Wells Fargo Bank, National Association, as trustee (the “
Trustee
”).
W
I T N E
S S E T H
WHEREAS,
each of Dollar General Corporation, Buck Acquisition Corp. and the Guarantors
(as defined in the Indenture referred to below) has heretofore executed and
delivered to the Trustee an indenture (the “
Indenture
”),
dated
as of July 6, 2007, providing for the issuance of an unlimited aggregate
principal amount of 11.875% / 12.625% Senior Subordinated Toggle Notes due
2017
(the “
Notes
”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuer’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (the “
Guarantee
”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Notes
as follows:
(1)
Capitalized
Terms
.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
(2)
Agreement
to Guarantee
.
The
Guaranteeing Subsidiary hereby agrees as follows:
(a)
Along
with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:
(i)
the
principal of and interest, premium and Special Interest, if any, on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuer to
the
Holders or the Trustee hereunder or thereunder will be promptly paid in full
or
performed, all in accordance with the terms hereof and thereof; and
(ii)
in
case
of any extension of time of payment or renewal of any Notes or any of such
other
obligations, that same will be promptly paid in full when due or performed
in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors and the Guaranteeing Subsidiary shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of payment and not
a
guarantee of collection.
(b)
The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense
of a
guarantor.
(c)
The
following is hereby waived: diligence, presentment, demand of payment, filing
of
claims with a court in the event of insolvency or bankruptcy of the Issuer,
any
right to require a proceeding first against the Issuer, protest, notice and
all
demands whatsoever.
(d)
This
Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Guarantor under the Indenture.
(e)
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in relation
to
either the Issuer or the Guarantors, any amount paid either to the Trustee
or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f)
The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g)
As
between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the
Guaranteeing Subsidiary for the purpose of this Guarantee.
(h)
The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under this Guarantee.
(i)
Pursuant
to Section 10.02 of the Indenture, after giving effect to all other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent
conveyance
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor
in
respect of the obligations of such other Guarantor under Article 10 of the
Indenture, this new Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Guaranteeing Subsidiary under this Guarantee
will not constitute a fraudulent transfer or conveyance.
(j)
This
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuer for liquidation,
reorganization, should the Issuer become insolvent or make an assignment for
the
benefit of creditors or should a receiver or trustee be appointed for all or
any
significant part of the Issuer’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes and Guarantee, whether as a “voidable preference”,
“fraudulent transfer” or otherwise, all as though such payment or performance
had not been made. In the event that any payment or any part thereof, is
rescinded, reduced, restored or returned, the Note shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid
and
not so rescinded, reduced, restored or returned.
(k)
In
case
any provision of this Guarantee shall be invalid, illegal or unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
(l)
This
Guarantee shall be a general senior obligation of such Guaranteeing Subsidiary,
ranking equally in right of payment with all existing and future senior
Indebtedness of the Guaranteeing Subsidiary but, to the extent of the value
of
the collateral, will be effectively senior to all of the Guaranteeing
Subsidiary’s unsecured senior Indebtedness. The Guarantees will be senior in
right of payment to all existing and future Subordinated Indebtedness of each
Guarantor. The Notes will be structurally subordinated to Indebtedness and
other
liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes,
if
any.
(m)
Each
payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any
kind
or nature.
(3)
Execution
and Delivery
.
The
Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force
and
effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.
(4)
Merger,
Consolidation or Sale of All or Substantially All Assets
.
(a)
Except
as
otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether
or
not the Issuer or Guaranteeing Subsidiary is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i)
such
Guarantor is the surviving corporation or the Person formed by or surviving
any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof
(such Guarantor or such Person, as the case may be, being herein called the
“
Successor
Person
”);
(ii)
the
Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under the Indenture and such Guarantor’s related
Guarantee pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(iii)
immediately
after such transaction, no Default exists; and
(iv)
the
Issuer shall have delivered to the Trustee an Officer’s Certificate, each
stating that such consolidation, merger or transfer and such supplemental
indentures, if any, comply with the Indenture; or
(v)
the
transaction is made in compliance with Section 4.09 of the
Indenture.
(b)
Subject
to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, such Guarantor under the Indenture and
such
Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may
(i) merge into or transfer all or part of its properties and assets to
another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer
solely for the purpose of reincorporating the Guarantor in the United States,
any state thereof, the District of Columbia or any territory thereof or (iii)
convert into a corporation, partnership, limited partnership, limited liability
corporation or trust organized or existing under the laws of the jurisdiction
of
organization of such Guarantor.
(5)
Releases
.
The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:
(1)
(A)
any
sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
such
Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all
the
assets of such Guarantor which sale, exchange or transfer is made in compliance
with the applicable provisions of this Indenture
;
(
B
)
the
release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such
Guarantee, except a discharge or release by or as a result of payment under
such
guarantee;
(C)
the
designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof; or
(D)
the
exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuer’s obligations under this
Indenture being discharged in accordance with the terms of this Indenture;
and
(2)
such
Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with.
(6)
No
Recourse Against Others
.
No
director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Issuer or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting Notes waives and releases all such liability. The waiver
and
release are part of the consideration for issuance of the Notes.
(7)
Governing
Law
.
THIS
SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEW YORK.
(8)
Counterparts
.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
(9)
Effect
of Headings
.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
(10)
The
Trustee
.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Guaranteeing Subsidiary.
(11)
Subrogation
.
The
Guaranteeing Subsidiary shall be subrogated to all rights of Holders of Notes
against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 10.01 of the
Indenture;
provided
that, if
an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary
shall not be entitled to enforce or receive any payments arising out of, or
based upon, such right of subrogation until all amounts then due and payable
by
the Issuer under the Indenture or the Notes shall have been paid in
full.
(12)
Benefits
Acknowledged
.
The
Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set
forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Indenture and this Supplemental Indenture and that the
guarantee and waivers made by it pursuant to this Guarantee are knowingly made
in contemplation of such benefits.
(13)
Successors
.
All
agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall
bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in
this
Supplemental Indenture shall bind its successors.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
[GUARANTEEING
SUBSIDIARY]
By:
Name:
Title:
WELLS
FARGO BANK,
NATIONAL ASSOCIATION,
as
Trustee
By:
Name:
Title:
D-6
EXHIBIT
4.10
EXECUTION
VERSION
Dollar
General Corporation
Successor
by Merger to Buck Acquisition Corp.
10.625%
Senior Notes due 2015
11.875%/12.625%
Senior Subordinated Toggle Notes due 2017
unconditionally
guaranteed as to the
payment
of principal, premium,
if
any, and interest by the
Guarantors
Exchange
and Registration Rights Agreement
July
6,
2007
Goldman,
Sachs & Co.
85
Broad
Street
New
York,
New York 10004
Citigroup
Global Markets Inc.
390
Greenwich Street
New
York,
New York 10013
Lehman
Brothers Inc.
745
Seventh Avenue
New
York,
New York 10019
Wachovia
Capital Markets, LLC
One
Wachovia Center 301
South
College Street
Charlotte,
North Carolina 28288-0737
Ladies
and Gentlemen:
In
connection with the merger (the “
Merger
”)
of
Buck Acquisition Corp. (“
Buck
”)
with
and into Dollar General Corporation (the “
Company
”),
pursuant to an agreement and plan of merger dated March 11, 2007 (the
“
Merger
Agreement
”)
by and
among Buck Holdings, L.P., a Delaware limited partnership, Buck and the Company,
Buck proposes to issue and sell to the Purchasers (as defined herein) upon
the
terms set forth in the Purchase Agreement (as defined herein), an aggregate
of
$1,175.0 million principal amount of 10.625% Senior Notes due 2015 (the
“
Senior
Notes
”)
and an
aggregate of $725.0 million principal amount of 11.875% / 12.625%
Senior
Subordinated Toggle Notes due 2017 (the “
Senior
Subordinated Notes
”).
Upon
consummation of the Merger, the Company, by operation of law, will assume
all of
Buck’s obligations in connection with the Senior Notes and the Senior
Subordinated Notes. The Senior Notes and the Senior Subordinated
Notes
are
unconditionally guaranteed by the Guarantors (as defined below). References
to
the “Issuer” refer to (x) prior to the consummation of the Merger, Buck and (y)
from and after the consummation of the Merger, the Company. As an inducement
to
the Purchasers to enter into the Purchase Agreement and in satisfaction of
a
condition to the obligations of the Purchasers thereunder, Buck, the Company
and
the Guarantors agree
with
the
Purchasers for the benefit of holders (as defined herein) from time to time
of
the Registrable Securities (as defined herein) as follows:
1.
Certain
Definitions
.
For
purposes of this Exchange and Registration Rights Agreement (this
“
Agreement
”
),
the
following terms shall have the following respective meanings:
“
Affiliate
Investor
”
means
any of the several Investors (as defined in the Indentures) that owns any
Securities or Exchange Securities to the extent that such person is included
in
a Market Making Shelf Registration in accordance with Section 2(c)
hereof.
“
Base
Interest
”
shall
mean the interest that would otherwise accrue on the Securities under the terms
thereof and the Indentures, without giving effect to the provisions of this
Agreement.
The
term
“
broker-dealer
”
shall
mean any broker or dealer registered with the Commission under the Exchange
Act.
“
Business
Day
”
shall
mean any day other than Saturday or Sunday that is not a day on which banking
institutions in the City of New York are authorized or obligated by law or
executive order to close.
“
Closing
Date
”
shall
mean the date on which the Securities are initially issued.
“
Commission
”
shall
mean the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
“
EDGAR
System
”
means
the EDGAR filing system of the Commission and the rules and regulations
pertaining thereto promulgated by the Commission in Regulation S-T under the
Securities Act and the Exchange Act, in each case as the same may be amended
or
succeeded from time to time (and without regard to format).
“
Effective
Time
,”
in the
case of (i) an Exchange Registration, shall mean the time and date as of
which the Commission declares the Exchange Registration Statement effective
or
as of which the Exchange Registration Statement otherwise becomes effective,
(ii) a Shelf Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration Statement effective or as of which
the Shelf Registration Statement otherwise becomes effective and (iii) a
Market Making Shelf Registration, shall mean the time and date as of which
the
Commission declares the Market Making Shelf Registration Statement effective
or
as of which the Market Making Shelf Registration Statement otherwise becomes
effective.
“
Electing
Holder
”
shall
mean any holder of Registrable Securities that has returned a completed and
signed Notice and Questionnaire to the Issuer in accordance with
Section 3(d)(ii) or Section 3(d)(iii) and the instructions set forth
in the Notice and Questionnaire.
“
Exchange
Act
”
shall
mean the Securities Exchange Act of 1934, as amended, and by reference shall
include the rules and regulations promulgated by the Commission thereunder,
as
the same may be amended or succeeded from time to time.
“
Exchange
Offer
”
shall
have the meaning assigned thereto in Section 2(a).
“
Exchange
Registration
”
shall
have the meaning assigned thereto in Section 3(c).
“
Exchange
Registration Statement
”
shall
have the meaning assigned thereto in Section 2(a).
“
Exchange
Securities
”
shall
have the meaning assigned thereto in Section 2(a).
“
Guarantors
”
shall
have the meaning assigned thereto in the Indentures.
The
term
“
holder
”
shall
mean each of the Purchasers and other persons who acquire Registrable Securities
from time to time (including any successors or assigns), in each case for so
long as such person owns any Registrable Securities.
“
Indentures
”
shall
mean the Senior Indenture, dated as of the date hereof, between Buck, the
Company, the Guarantors and Wells Fargo Bank, National Association as trustee,
and the Senior Subordinated Indenture, dated as of the date hereof, between
Buck, the Company, the Guarantors and Wells Fargo Bank, National Association,
as
trustee, as both may be amended from time to time.
“
Issuer
”
shall
have the meaning set forth in the introductory paragraph of this Agreement
.
“
Joinder
Agreement
”
shall
mean the Joinder Agreement, dated as of the date hereof, among the Company,
the
Guarantors the Purchasers, whereby the Company and the Guarantors agreed to,
among other things, join and become a party to the Purchase Agreement.
“
Market
Making Conditions
”
shall
have the meaning assigned thereto in Section 2(c).
“
Market
Making Shelf Registration
”
shall
have the meaning assigned thereto in Section 2(c).
“
Market
Making Shelf Registration Statement
”
shall
have the meaning assigned thereto in Section 2(c).
“
Material
Adverse Effect
”
shall
have the meaning set forth in Section 5(c).
“
Notice
and Questionnaire
”
means a
Notice of Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Exhibit A hereto.
The
term
“
person
”
shall
mean a corporation, limited liability company, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
“
Purchase
Agreement
”
shall
mean the Purchase Agreement, dated as of June 28, 2007 between Buck and the
Purchasers relating to the Securities, to which the Company and the Guarantors
became parties to upon execution of the Joinder Agreement.
“
Purchasers
”
shall
mean the Purchasers named in Schedule I to the Purchase Agreement.
“
Registrable
Securities
”
shall
mean the Securities;
provided,
however,
that a
Security shall cease to be a Registrable Security upon the earliest to occur
of
the following: (i) in the circumstances contemplated by Section 2(a),
the Security has been exchanged for an Exchange Security in an Exchange Offer
as
contemplated in Section 2(a) (
provided
that any
Exchange Security that, pursuant to the last two sentences of Section 2(a),
is included in a prospectus for use in connection with resales by broker-dealers
shall be deemed to be a Registrable Security with respect to Sections 5, 6
and 9
until resale of such Registrable Security has been effected within the 90-day
period referred to in Section 2(a)); (ii) in the circumstances contemplated
by Section 2(b), a Shelf Registration Statement registering such Security
under the Securities Act has been declared or becomes effective and such
Security has been sold or otherwise transferred by the holder thereof pursuant
to and in a manner contemplated by such effective Shelf Registration Statement;
(iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed
by
the Issuer or pursuant to the Indentures; (iv) such Security is eligible to
be
sold pursuant to paragraph (k) of Rule 144; or (v) such Security shall
cease to be outstanding.
“
Registration
Default
”
shall
have the meaning assigned thereto in Section 2(d).
“
Registration
Default Period
”
shall
have the meaning assigned thereto in Section 2(d).
“
Registration
Expenses
”
shall
have the meaning assigned thereto in Section 4.
“
Resale
Period
”
shall
have the meaning assigned thereto in Section 2(a).
“
Restricted
Holder
”
shall
mean (i) a holder that is an affiliate of the Issuer within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder’s business, (iii) a holder who has
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing Exchange Securities and (iv) a holder
that
is a broker-dealer, but only with respect to Exchange Securities received by
such broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Issuer.
“
Rule 144
”,
“
Rule 405
”,
“
Rule 415
”,
“
Rule 424
”,
“
Rule 430B
”
and
“
Rule 433
”
shall
mean, in each case, such rule promulgated by the Commission under the Securities
Act (or any successor provision), as the same may be amended or succeeded from
time to time.
“
Secondary
Offer Registration Statement
”
shall
mean (i) the Shelf Registration Statement required to be filed by the Issuer
pursuant to Section 2(b) and/or (ii) the Market Making Shelf Registration
Statement required to be filed by the Issuer pursuant to Section 2(c), in each
case, as applicable,
provided,
however
,
that
references in this Agreement to a
Secondary
Offer Registration Statement shall not be deemed to include a Market Making
Shelf Registration Statement at any time during which the Market-Making
Conditions are not applicable. As used herein, references to a Secondary
Offer
Registration Statement in the singular shall, if applicable, be deemed to
be in
the plural.
“
Securities
”
shall
mean, collectively, the
Senior
Notes and the Senior Subordinated Notes to be issued and sold to the Purchasers,
and securities issued in exchange therefor or in lieu thereof pursuant to the
Indentures. Each Security is entitled to the benefit of the guarantees provided
by the Guarantors in each of the Indentures (the “
Guarantees
”)
and,
unless the context otherwise requires, any reference herein to a “
Security
,”
an
“
Exchange
Security
”
or
a
“
Registrable
Security
”
shall
include a reference to the related Guarantees.
“
Securities
Act
”
shall
mean the Securities Act of 1933, as amended, and by reference shall include
the
rules and regulations promulgated by the Commission thereunder, as the same
may
be amended or succeeded from time to time.
“
Shelf
Registration
”
shall
have the meaning assigned thereto in Section 2(b).
“
Shelf
Registration Statement
”
shall
have the meaning assigned thereto in Section 2(b).
“
Special
Interest
”
shall
have the meaning assigned thereto in Section 2(d).
“
Suspension
Period
”
shall
have the meaning assigned thereto in Section 2(b).
“
Trust
Indenture Act
”
shall
mean the Trust Indenture Act of 1939, as amended, and by reference shall include
the rules and regulations promulgated by the Commission thereunder, as the
same
may be amended or succeeded from time to time.
“
Trustee
”
shall
mean Wells Fargo Bank, N.A., as trustee under the Indentures, together with
any
successors thereto in such capacity.
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.
2.
Registration
Under the Securities Act
.
(a)
Except
as
set forth in Section 2(b) below, the Issuer agrees to file under the
Securities Act, one or more registration statements relating to an offer to
exchange (such registration statements, together, the
“
Exchange
Registration Statement
,
”
and such
offer, the
“
Exchange
Offer
”
)
any and
all of the Securities for a like aggregate principal amount of debt securities
issued by the Issuer and guaranteed by the Guarantors, which debt securities
and
guarantees
are
substantially identical to the Securities
and
the
related Guarantees, respectively (and are entitled to the benefits of a trust
indenture which is substantially identical to the applicable Indenture or is
the
applicable Indenture and which has been qualified under the Trust Indenture
Act), except that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain provisions
for Special Interest contemplated in Section 2(d) below (such new debt
securities hereinafter called
“
Exchange
Securities
”
).
The
Issuer agrees to use all commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under
the
Securities Act no later than 270 days after the Closing 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. Unless the Exchange Offer would not be permitted by applicable law or
Commission policy, the Issuer further agrees to use all commercially reasonable
efforts to (i) commence the Exchange Offer promptly following the Effective
Time of such Exchange Registration Statement, (ii) hold the Exchange Offer
open for at least 20 Business Days in accordance with Regulation 14E promulgated
by the Commission under the Exchange Act, or longer, if required by the federal
securities laws and (iii) exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn promptly following
the expiration of the Exchange Offer. The Exchange Offer will be deemed to
have
been “completed” only if: (i) the debt securities
and
related guarantees 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 the Exchange
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 and (ii)
upon
the Issuer 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 20 Business Days following the commencement of the Exchange
Offer. The Issuer agrees (x) to include in the Exchange Registration Statement
a
prospectus for use in any resales by any holder of Exchange Securities that
is a
broker-dealer and (y) to keep such Exchange Registration Statement effective
for
a period (the
“
Resale
Period
”
)
beginning when Exchange Securities are first issued in the Exchange Offer
and
ending upon the earlier of the expiration of the
90
th
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 Exchange
Registration Statement, such holders shall have the benefit of the rights
of
indemnification and contribution set forth in Subsections 6(a), (f) and
(g).
(b)
If
(i) on
or prior to the time the Exchange Offer is completed, existing law or Commission
interpretations are changed such that the debt securities or the related
guarantees received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Effective Time of the Exchange Registration Statement is not within
270
days following the Closing Date and the Exchange Offer has not been completed
within 30 Business Days of such Effective Time or (iii) any holder of
Registrable Securities notifies the Issuer prior to the 20
th
Business
Day following the completion of the Exchange Offer that: (A) it is
prohibited by law or Commission policy from participating in the Exchange Offer,
(B) it may not resell the Exchange Securities to the public without
delivering a prospectus and the prospectus supplement contained in the Exchange
Registration Statement is not appropriate or available for such resales or
(C)
it is a broker-dealer and owns Securities acquired directly from the Issuer
or
an affiliate of the Issuer, then the Issuer and the Guarantors shall, in lieu
of
(or, in the case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act
no
later
than 30 days after the time such obligation to file arises (but no earlier
than
270 days after the Closing Date)
,
one or
more “shelf” registration statements 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 or any similar rule that may be adopted by
the Commission (such filing, the
“
Shelf
Registration
”
and such
registration statement, the
“
Shelf
Registration Statement
”
).
The
Issuer agrees to use all commercially reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective no later
than
90
days after such Shelf Registration Statement filing obligation arises (but
no
earlier than 270 days after the Closing Date);
provided
,
that if
at any time the Issuer is or becomes a “well-known seasoned issuer” (as defined
in Rule 405) and is eligible to file an “automatic shelf registration
statement” (as defined in Rule 405), then the Issuer and the Guarantors
shall file the Exchange Registration Statement in the form of an automatic
shelf
registration statement as provided in Rule 405. The Issuer agrees to use
all commercially reasonable efforts to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the Effective Time or such time as there are no longer any
Registrable Securities outstanding. No holder shall be entitled to be named
as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder. The Issuer agrees, after the Effective
Time
of the Shelf Registration Statement and promptly upon the request of any
holder
of Registrable Securities that is not then an Electing Holder, to use all
commercially reasonable efforts to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including,
without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant to Rules 430B and 424(b)
under the Securities Act identifying such holder),
provided,
however,
that
nothing in this clause (y) shall (A) relieve any such holder of the obligation
to return a completed and signed Notice and Questionnaire to the Issuer in
accordance with Section 3(d)(iii) or (B) require the Issuer or the
Guarantors to file more than one post-effective amendment to the Shelf
Registration Statement in any 45-day period. Notwithstanding anything to
the
contrary in this Section 2(b), upon notice to the Electing Holders, the
Issuer may suspend the use or the effectiveness of such Shelf Registration
Statement, or extend the time period in which it is required to file the
Shelf
Registration Statement, for up to 60 days in the aggregate in any 12-month
period (a
“
Suspension
Period
”
)
if the
Board of Directors of the Issuer determines that there is a valid business
purpose for suspension of the Shelf Registration Statement;
provided
that the
Issuer shall promptly notify the Electing Holders when the Shelf Registration
Statement may once again be used or is effective.
(c)
For
the
sole benefit of Goldman, Sachs & Co. or any of its affiliates (as defined
under the rules and regulations of the Commission), so long as (x) any of the
Registrable Securities are outstanding and (y) it would be necessary under
applicable laws, rules and regulations, in the reasonable opinion of Goldman,
Sachs & Co., for Goldman, Sachs & Co. or any of its affiliates to
deliver a prospectus in connection with market-making activities with respect
to
the Registrable Securities or Exchange Securities and Goldman, Sachs & Co.
or such affiliate proposes to make a market in the Registrable Securities or
Exchange Securities as part of its business in the ordinary course (the
“Market-Making Conditions”), the following provisions shall apply for the sole
benefit of Goldman, Sachs & Co. (it being understood that only a person for
whom the Market-Making Conditions apply at the applicable time shall be entitled
to the use of the Market Making Shelf Registration Statement and related
provisions of this Agreement at any time), the Issuer shall use all commercially
reasonable efforts to file under the Securities Act, a “shelf” registration
statement (which may be the Exchange Registration Statement or the Shelf
Registration Statement if permitted by the rules and regulations of the
Commission) pursuant to Rule 415 under the Securities Act or any similar rule
that may be adopted by the Commission providing for the registration of, and
the
sale on a continuous or delayed basis in secondary transactions by Goldman,
Sachs & Co. of, Securities (in the event of a Shelf Registration) or
Exchange Securities (in the event of an Exchange Offer) (such filing, the
“
Market
Making Shelf Registration
”,
and
such registration statement, the “
Market
Making Shelf
Registration
Statement
”).
The
Issuer agrees to use all commercially reasonable efforts to cause the Market
Making Shelf Registration Statement to become or be declared effective on
or
prior to (i) the date the Exchange Offer is completed pursuant to Section
2(a)
above or (ii) the date the Shelf Registration becomes or is declared effective
pursuant to Section 2(b) above, and to keep such Market Making Shelf
Registration Statement continuously effective for so long as Goldman, Sachs
& Co. may be required to deliver a prospectus in connection with
transactions in the Securities or the Exchange Securities, as the case may
be.
In the event that Goldman, Sachs & Co. holds Securities at the time an
Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees
that the Market Making Shelf Registration shall provide for the resale by
Goldman, Sachs & Co. of such Securities and shall use its commercially
reasonable efforts to keep the Market Making Shelf Registration Statement
continuously effective until such time as Goldman, Sachs & Co. determines in
its reasonable judgment that it is no longer required to deliver a prospectus
in
connection with the sale of such Securities.
Notwithstanding
anything to the contrary in this Section 2(c), upon at least 10 Business Days
prior written notice to Goldman, Sachs & Co., the Issuer may elect to cause
the Market Making Registration Statement to provide for the registration of,
and
the sale on a continuous or delayed basis in secondary transactions by any
Affiliate Investor of Securities (in the event of a shelf registration) or
Exchange Securities (in the event of an Exchange Offer) regardless of whether
such Affiliate Investor otherwise would qualify as an Electing Holder eligible
to participate in a Shelf Registration Statement in accordance with Section
2(b)
hereof;
provided
however
,
if
Goldman, Sachs & Co. requests in writing at any time that the Issuer exclude
any or all Affiliate Investors from the Market Making Registration Statement,
then the Issuer shall either omit such Affiliate Investors from inclusion in
the
Market Making Registration Statement or promptly amend the Market Making
Registration Statement to exclude them from the Market Making Registration
Statement. The inclusion of any Affiliate Investor in the Market Making
Registration Statement shall not affect the rights of Goldman, Sachs & Co.
to make any determinations otherwise provided exclusively to Goldman, Sachs
& Co. in this Agreement.
Notwithstanding
the foregoing, the Issuer may suspend the offering and sale under the Market
Making Shelf Registration Statement for a Suspension Period if the Board of
Directors of the Issuer determines that such registration would require (i)
disclosure of an event at such time as could reasonably be expected to have
a
material adverse effect on the business operations or prospects of the Issuer
(ii) disclosure of material information relating to a corporate development
or
(iii) such Market-Making Registration Statement or amendment or supplement
thereto contains an untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in light of
the
circumstances under which they were made, not misleading;;
provided
that the
Issuer shall promptly notify Goldman, Sachs & Co. when the Market Making
Shelf Registration Statement may once again be used or is
effective.
(d)
In
the
event that (i) the Issuer and the Guarantors have not filed the Exchange
Registration Statement or the Shelf Registration Statement on or before the
date
on which such registration statement is required to be filed pursuant to
Section 2(a) or Section 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become effective
or been declared effective by the Commission on or before the date on which
such
registration statement is required to become or be declared effective pursuant
to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange
Offer has not been completed within 60 Business Days after the Effective Time
of
the Exchange
Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then required
to be made) or (iv) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or Section 2(b) is
filed and declared effective but shall thereafter either be withdrawn by
the
Issuer or shall become subject to an effective stop order issued pursuant
to
Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) 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
”
and each
period during which a Registration Default has occurred and is continuing,
a
“
Registration
Default Period
”
),
then,
as liquidated damages for such Registration Default, subject to the provisions
of Section 9(b), special interest (
“
Special
Interest
”
),
in
addition to the Base Interest, shall accrue at a per annum rate of 0.25%
for the
first 90 days of the Registration Default Period, at a per annum rate of
0.50%
for the second 90 days of the Registration Default Period, at a per annum
rate
of 0.75% for the third 90 days of the Registration Default Period and at
a per
annum rate of 1.0% thereafter for the remaining portion of the Registration
Default Period. Special Interest shall accrue and be payable only with respect
to a single Registration Default at any given time, notwithstanding the fact
that multiple Registration Defaults may exist at such time. The accrual of
Special Interest shall be the exclusive monetary remedy available to the
holders
of Registrable Securities for any Registration Default.
(e)
The
Issuer shall take, and shall cause the Guarantors to take,
all
actions necessary or advisable to be taken by them to ensure that the
transactions contemplated herein are effected as so contemplated, including
all
actions necessary or desirable to register the Guarantees under the registration
statement contemplated in Section 2(a) or Section 2(b), as
applicable.
(f)
Any
reference herein to a registration statement as of any time shall be deemed
to
include any document incorporated, or deemed to be incorporated, therein by
reference as of such time and any reference herein to any post-effective
amendment to a registration statement as of any time shall be deemed to include
any document incorporated, or deemed to be incorporated, therein by reference
as
of such time.
3.
Registration
Procedures
.
If
the
Issuer and the Guarantors file a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(c), the following provisions
shall apply:
(a)
At
or
before the Effective Time of the Exchange Registration, the Shelf Registration
or Market Making Registration whichever may be first, the Issuer shall qualify
the Indentures under the Trust Indenture Act.
(b)
In
the
event that such qualification would require the appointment of new trustees
under the Indentures, the Issuer shall appoint new trustees thereunder pursuant
to the applicable provisions of the Indentures.
(c)
In
connection with the Issuer’s and the Guarantors’ obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
“
Exchange
Registration
”
),
if
applicable, the Issuer and the Guarantors shall:
(i)
prepare
and file with the Commission an Exchange Registration Statement on any form
which may be utilized by the Issuer and the Guarantors and which shall
permit
the Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a), and use
all commercially reasonable efforts to cause such Exchange Registration
Statement to become effective no later than 270 days after the Closing
Date;
(ii)
promptly
prepare and file with the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included therein as may
be
necessary to effect and maintain the effectiveness of such Exchange Registration
Statement for the periods and purposes contemplated in Section 2(a) and as
may be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Exchange Registration Statement,
and promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements
of
the Securities Act and the Trust Indenture Act, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii)
promptly
notify each broker-dealer that has requested or received copies of the
prospectus included in such Exchange Registration Statement, and confirm such
advice in writing, (A) when such Exchange 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 Exchange
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by 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 Exchange
Registration Statement or prospectus or for additional information relating
to
such Exchange Registration Statement or prospectus, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any proceedings
for
that purpose, (D) if at any time the representations and warranties of the
Issuer contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (F) the occurrence of any event that causes the Issuer to
become an “ineligible issuer” as defined in Rule 405, or (G) if at any
time during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act or 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;
(iv)
in
the
event that the Issuer and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G), to notify any broker-dealers holding Exchange
Securities (except as otherwise permitted during any Suspension Period),
promptly prepare and furnish to each such holder a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such prospectus
shall conform in all
material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and 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;
(v)
use
all
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi)
use
all
commercially reasonable efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such jurisdictions
as
are contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, to the extent required by such laws, (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 until the expiration of the Resale Period, (C) take any and
all other actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition thereof
in such jurisdictions and (D) obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may
be
required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during the Resale
Period;
provided,
however,
that
neither the Issuer nor the Guarantors shall 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)(vi), (2) consent to general service of process in any
such jurisdiction or become subject to taxation in any such jurisdiction or
(3) make any changes to its certificate of incorporation or by-laws or
other governing documents or any agreement between it and its
stockholders;
(vii)
provide
a
CUSIP number for all Exchange Securities, not later than the applicable
Effective Time; and
(viii)
comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months after the
Effective Time of such Exchange Registration Statement, an earnings statement
of
the Issuer and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Issuer, Rule 158
thereunder);
provided,
however
,
that
this requirement shall be deemed satisfied by the Issuer’s compliance with
Section 4.03 of the Indentures.
(d)
In
connection with the Issuer’s and the Guarantors’ obligations with respect to any
Secondary Offer Shelf Registration, if applicable,
the
Issuer and the Guarantors shall use all commercially reasonable efforts to
cause
the applicable Secondary Offer Registration Statement to permit the disposition
of Registrable Securities by the holders thereof, in the case of the Shelf
Registration, and of Securities or Exchange Securities by Goldman, Sachs &
Co. and any Affiliate Investor, in the case of a Market Making Shelf
Registration (in each case, subject to any applicable Suspension Period), in
accordance with the intended method or methods of disposition thereof provided
for in the applicable Secondary Offer Registration Statement. In connection
therewith, the Issuer shall:
(i)
(A)
prepare and file with the Commission, within the time periods specified in
Section 2(b) and Section 2(c) hereof, as applicable, a Secondary Offer
Registration
Statement on any form which may be utilized by the Issuer and the Guarantors,
which shall (x) register all of the Registrable Securities, in the case of
a
Shelf Registration, and the Securities and Exchange Securities, in the case
of a
Market Making Shelf Registration, for resale by the holders thereof in
accordance with such method or methods of disposition as may be specified
by the
holders of the Registrable Securities as, from time to time, may be Electing
Holders, in the case of a Shelf Registration, or Goldman, Sachs & Co. and
any Affiliate Investor, in the case of a Market Making Shelf Registration
and
(y) be, in the case of a Market Making Shelf Registration, in the form approved
by Goldman, Sachs & Co., and (B) use all commercially reasonable efforts to
cause each such Secondary Offer Registration Statement to become effective
within the time periods specified in Section 2(b) and Section 2(c) hereof,
as
applicable;
(ii)
mail
the
Notice and Questionnaire to the holders of Registrable Securities (A) not less
than 30 days prior to the anticipated Effective Time of the Shelf Registration
Statement or (B) in the case of an “automatic shelf registration statement”
(as defined in Rule 405), mail the Notice and Questionnaire to the holders
of Registrable Securities not later than the Effective Time of such Shelf
Registration Statement, and in any such case no holder shall be entitled to
be
named as a selling securityholder in the Shelf Registration Statement, and
no
holder shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless and until such holder
has
returned a completed and signed Notice and Questionnaire to the Issuer; in
the
case of any Affiliate Investor that desires to participate in any Market Making
Shelf Registration, such Affiliate Investor shall have returned a completed
and
signed Questionnaire to the Issuer prior the time that the Issuer notifies
Goldman, Sachs & Co. of its intention to include such Affiliate Investor in
the Market Making Shelf Registration, and the responses by the Affiliate
Investor in such Questionnaire shall be reasonably satisfactory to each of
the
Issuer and Goldman, Sachs & Co.;
provided,
however
,
holders
of Registrable Securities (in the case of a Shelf Registration Statement) or
any
Affiliate Investor (in the case of a Market Making Shelf Registration) shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holder or provided to such Affiliate
Investor to return a completed and signed Notice and Questionnaire to the
Issuer;
(iii)
after
the
Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder;
provided
that the
Issuer shall not be required to (A) take any action to name such holder as
a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Issuer and (B) nothing in this clause (iii) shall require
the Issuer or the Guarantors to file more than one post-effective amendment
to
the Shelf Registration Statement in any 45-day period;
(iv)
as
soon
as practicable (A) prepare and file with the Commission such amendments and
supplements to the Secondary Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness
of
such Secondary Offer Registration Statement for the period specified in Section
2(b) and Section 2(c) hereof, as applicable, and as may be
required
by the applicable rules and regulations of the Commission and the instructions
applicable to the form of such Secondary Offer Registration Statement and,
in
the case of an amendment to or supplement of the Market Making Shelf
Registration Statement, each in a form approved by Goldman, Sachs & Co. and
(B) furnish to the Electing Holders, in the case of a Shelf Registration,
and
Goldman, Sachs & Co. and any Affiliate Investor, in the case of a Market
Making Shelf Registration, copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the Commission
to
the extent such documents are not publicly available on the Commission’s EDGAR
System;
(v)
comply
with the provisions of the Securities Act with respect to the disposition of
all
of the Registrable Securities, Securities or Exchange Securities, as applicable,
covered by such Secondary Offer Registration Statement in accordance with the
intended methods of disposition provided for therein by the Electing Holders,
in
the case of a Shelf Registration, or Goldman, Sachs & Co. and any Affiliate
Investor, in the case of a Market Making Shelf Registration;
(vi)
provide
(A) with respect to a Shelf Registration, the Electing Holders and not more
than
one counsel for all the Electing Holders; and (B) with respect to a Market
Making Shelf Registration, Goldman, Sachs & Co. and its counsel and any
Affiliate Investor, the opportunity to participate in the preparation of such
Secondary Offer Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement thereto;
(vii)
for
a
reasonable period prior to the filing of such Secondary Offer Registration
Statement, and throughout the period specified in Section 2(b) or Section
2(c) hereof, as applicable, make available at reasonable times at the Issuer’s
principal place of business or such other reasonable place for inspection by
the
persons referred to in Section 3(d)(vi) who shall certify to the Issuer
that they have a current intention to sell the Registrable Securities pursuant
to the Shelf Registration, or the Securities or Exchange Securities pursuant
to
the Market Making Shelf Registration, as applicable, such financial and other
information and books and records of the Issuer, and cause the officers,
employees, counsel and independent certified public accountants of the Issuer
to
respond to such inquiries, as shall be reasonably necessary (and in the case
of
counsel, not violate an attorney-client privilege, in such counsel’s reasonable
belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act;
provided,
however,
that the
foregoing inspection and information gathering on behalf of the Electing Holders
shall be conducted by one counsel designated by the holders of at least a
majority in aggregate principal amount of the Registrable Securities held by
the
Electing Holders at the time outstanding and
provided
further
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
Issuer as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such
Secondary Offer Registration Statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to a 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 Issuer prompt prior written notice of such
requirement), or (C) such information is required to be set forth in such
Secondary Offer Registration
Statement
or the prospectus included therein or in an amendment to such Secondary Offer
Registration Statement or an amendment or supplement to such prospectus in
order
that such Secondary Offer Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable requirements of
the
federal securities laws and the rules and regulations of the Commission and
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;
(viii)
promptly
notify each of the Electing Holders, Goldman, Sachs & Co. or each of the
Affiliate Investors, as applicable, and confirm such advice in writing,
(A) when such Secondary Offer 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 Secondary Offer Registration
Statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto which are relevant
to the Electing Holders, Goldman, Sachs & Co. or an Affiliate Investor, as
applicable, or any request by the Commission for amendments or supplements
to
such Secondary Offer Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Secondary Offer Registration Statement
or
the initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Issuer set forth in
Section 5 cease to be true and correct in all material respects,
(E) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification of the Registrable Securities or the Securities
or Exchange Securities, as applicable, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (F) the
occurrence of any event that causes the Issuer to become an “ineligible issuer”
as defined in Rule 405, or (G) if at any time when a prospectus is
required to be delivered under the Securities Act, that such Secondary Offer
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act or
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;
(ix)
use
all
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of such Secondary Offer Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(x)
if
requested by any Electing Holder, Goldman, Sachs & Co. or any Affiliate
Investor, 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 Electing Holder, Goldman, Sachs &
Co. or such Affiliate Investor specifies should be included therein relating
to
the terms of the sale of such Registrable Securities or the Securities or
Exchange Securities, as applicable, including information with respect to the
principal amount of Registrable Securities or the Securities or Exchange
Securities, as applicable, being sold by such Electing Holder, Goldman, Sachs
& Co. or any Affiliate Investor, the name and description of such Electing
Holder, Goldman, Sachs & Co. or any Affiliate Investor, the offering
price
of
such Registrable Securities, Securities or Exchange Securities, as applicable,
and any discount, commission or other compensation payable in respect thereof
and with respect to any other terms of the offering of the Registrable
Securities, Securities or Exchange Securities, as applicable, to be sold
by such
Electing Holder, Goldman, Sachs & Co. or any Affiliate Investor; 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;
(xi)
furnish
upon request to Goldman, Sachs & Co., or each Electing Holder and the
respective counsel referred to in Section 3(d)(vi) an executed copy (or, in
the case of an Electing Holder or Affiliate Investor, a conformed copy) of
such
Secondary Offer Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an Electing
Holder of Registrable Securities, upon request) and documents incorporated
by
reference therein) and such number of copies of such Secondary Offer
Registration Statement (excluding exhibits thereto and documents incorporated
by
reference therein unless specifically so requested by Goldman, Sachs & Co.,
such Electing Holder or Affiliate Investor) and of the prospectus included
in
such Secondary Offer Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the Trust Indenture
Act to the extent such documents are not available through the Commission’s
EDGAR System, and such other documents, as Goldman, Sachs & Co., such
Electing Holder or Affiliate Investor may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned
by
such Electing Holder, the Securities or Exchange Securities owned by Goldman,
Sachs & Co. or such Affiliate Investor, and the Registrable Securities,
Securities or Exchange Securities, as applicable, and to permit such Electing
Holder and Affiliate Investor to satisfy the prospectus delivery requirements
of
the Securities Act; and subject to Section 3(e), the Issuer hereby consents
to the use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by Goldman, Sachs & Co.,
each such Electing Holder and Affiliate Investor (in each case subject to any
applicable Suspension Period), in each case in the form most recently provided
to such person by the Issuer, in connection with the offering and sale of the
Registrable Securities, Securities or Exchange Securities covered by the
prospectus (including such preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii)
use
all
commercially reasonable efforts, if necessary, to (A) register or qualify
the Registrable Securities,
Securities
or Exchange Securities, as applicable
,
to be
included in such Secondary Offer Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing Holder, Goldman,
Sachs & Co. or Affiliate Investor 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) or the period the Market Making Shelf
Registration is required to remain effective under Section 2(c), as applicable,
and for so long as may be necessary to enable Goldman, Sachs & Co., any such
Electing Holder or Affiliate Investor to complete its distribution of
Registrable Securities, Securities or Exchange Securities, as applicable,
pursuant to such Secondary Offer Registration Statement, (C) take any and
all other actions
as
may be
reasonably necessary or advisable to enable each such Electing Holder, Affiliate
Investor and Goldman, Sachs & Co., as applicable, to consummate the
disposition in such jurisdictions of such Registrable Securities, Securities
or
Exchange Securities, as applicable, and (D) obtain the consent or approval
of each governmental agency or authority, whether federal, state or local,
which
may be required to effect such Secondary Offer Registration Statement 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, Securities or Exchange Securities, as applicable;
provided,
however,
that
neither
the
Issuer nor the Guarantors shall 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(d)(xii), (2) consent to general service of process in any
such jurisdiction or become subject to taxation in any such jurisdiction
or
(3) make any changes to its certificate of incorporation or by-laws or
other governing documents or any agreement between it and its
stockholders;
(xiii)
unless
any Registrable Securities shall be in book-entry only form, cooperate with
the
Electing Holders or Goldman, Sachs & Co. to facilitate the timely
preparation and delivery of certificates representing Registrable Securities,
Securities or Exchange Securities, as applicable, to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities, Securities or Exchange Securities, as applicable, are
listed, shall be printed, penned, lithographed, engraved or otherwise produced
by any combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv)
provide
a
CUSIP number for all Registrable Securities, Securities or Exchange Securities,
as applicable, not later than the applicable Effective Time;
(xv)
notify
in
writing each holder of Registrable Securities and Goldman, Sachs & Co. of
any proposal by the Issuer to amend or waive any provision of this Agreement
pursuant to Section 9(h) 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;
(xvi)
comply
with all applicable rules and regulations of the Commission, and make generally
available to its securityholders no later than eighteen months after the
Effective Time of such Secondary Offer Registration Statement an earnings
statement of the Issuer and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the Issuer, Rule 158
thereunder);
provided,
however,
that
this requirement shall be deemed satisfied by the Issuer’s compliance with
Section 4.03 of the Indentures; and
(xvii)
for
so
long as Goldman, Sachs & Co. may be required to deliver a prospectus in
connection with the offer and sale of Securities or Exchange Securities in
secondary transactions, to furnish to Goldman, Sachs & Co. copies of all
reports or other communications (financial or other) furnished to stockholders
of the Issuer, and deliver to Goldman, Sachs & Co. (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange or interdealer automated
quotation system on which the Securities or Exchange Securities or any other
securities of the Issuer are listed or
quoted
and (ii) such additional information concerning the business and financial
condition of the Issuer and its subsidiaries as Goldman, Sachs & Co. may
from time to time reasonably request.
(e)
In
the
event that the Issuer would be required, pursuant to Section 3(d)(viii)(G),
to notify the Electing Holders, Goldman, Sachs & Co. or Affiliate Investors,
the Issuer shall promptly prepare and furnish to each of the Electing Holders,
Goldman, Sachs & Co. and Affiliate Investors a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, Securities or Exchange Securities, as
applicable, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
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
Electing Holder, Goldman, Sachs & Co. and Affiliate Investor agrees that
upon receipt of any notice from the Issuer pursuant to
Section 3(d)(viii)(G), such Electing Holder, Goldman, Sachs & Co. and
Affiliate Investor shall forthwith discontinue the disposition of Registrable
Securities, Securities or Exchange Securities, as applicable, pursuant to the
Secondary Offer Registration Statement applicable to such Registrable
Securities, Securities or Exchange Securities, as applicable, until such
Electing Holder, Goldman, Sachs & Co. or Affiliate Investor shall have
received copies of such amended or supplemented prospectus, and if so directed
by the Issuer, such Electing Holder, Goldman, Sachs & Co. or Affiliate
Investor shall deliver to the Issuer (at the Issuer’s expense) all copies, other
than permanent file copies, then in such Electing Holder’s, Goldman, Sachs &
Co.’s or Affiliate Investor’s possession of the prospectus covering such
Registrable Securities, Securities or Exchange Securities, as applicable, at
the
time of receipt of such notice.
(f)
In
the
event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire as to which
any
Shelf Registration pursuant to Section 2(b) is being effected or to be provided
by Goldman, Sachs & Co. and each Affiliate Investor in connection with the
Market Making Shelf Registration pursuant to Section 2(c), the Issuer may
require such Electing Holder, Goldman, Sachs & Co. or an Affiliate Investor,
as applicable, to furnish to the Issuer such additional information regarding
such Electing Holder, Goldman, Sachs & Co. or Affiliate Investor, and such
Electing Holder’s, Goldman, Sachs & Co.’s or Affiliate Investor’s, intended
method of distribution of Registrable Securities, Securities or Exchange
Securities, as applicable, as may be required in order to comply with the
Securities Act. Each such Electing Holder, Goldman, Sachs & Co. and
Affiliate Investor agrees to notify the Issuer as promptly as practicable of
any
inaccuracy or change in information previously furnished by such Electing
Holder, Goldman, Sachs & Co. or Affiliate Investor, to the Issuer or of the
occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration or Market Making Shelf Registration, as
applicable, contains or would contain an untrue statement of a material fact
regarding such Electing Holder, Goldman, Sachs & Co. or Affiliate Investor,
or such Electing Holder’s, Goldman, Sachs & Co.’s or Affiliate Investor’s
intended method of disposition of such Registrable Securities or omits to state
any material fact regarding such Electing Holder Goldman, Sachs & Co. or an
Affiliate Investor, or such Electing Holder’s intended method of disposition of
such Registrable Securities, Securities or Exchange Securities, as applicable,
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 Issuer 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 Electing Holder, Goldman, Sachs & Co. or Affiliate Investor,
or the disposition of such Registrable Securities, Securities or Exchange
Securities, as applicable, 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.
(g)
Until
the
expiration of two years after the Closing Date, the Issuer will not, and will
not permit any of its “affiliates” (as defined in Rule 144) to, resell any
of the Securities that have been reacquired by any of them except pursuant
to an
effective registration statement, or a valid exemption from the registration
requirements, under the Securities Act.
(h)
As
a
condition to its participation in the Exchange Offer, each holder of Registrable
Securities shall furnish, upon the request of the Issuer, a written
representation to the Issuer (which may be contained in the letter of
transmittal or “agent’s message” transmitted via The Depository Trust Company’s
Automated Tender Offer Procedures, in either case contemplated by the Exchange
Registration Statement) to the effect that (A) it is not an “affiliate” of
the Issuer, as defined in Rule 405 of the Securities Act, or if it is such
an “affiliate”, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (B) it is not
engaged in and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer, (C) it is acquiring the
Exchange Securities in its ordinary course of business, (D) if it is a
broker-dealer that holds Securities that were acquired for its own account
as a
result of market-making activities or other trading activities (other than
Securities acquired directly from the Issuer or any of its affiliates), it
will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Securities received by it in the
Exchange Offer, (E) if it is a broker-dealer, that it did not purchase the
Securities to be exchanged in the Exchange Offer from the Issuer or any of
its
affiliates, and (F) it is not acting on behalf of any person who could not
truthfully and completely make the representations contained in the foregoing
subclauses (A) through (E).
(i)
Notwithstanding
anything to the contrary contained herein, the Issuer may for valid business
reasons, including without limitation, a potential acquisition, divestiture
of
assets or other material corporate transaction, issue a notice that a Market
Making Registration statement is no longer effective or the prospectus included
therein is no longer usable for offers and sales of Registrable Securities
or
Exchange Securities, as applicable, and may issue any notice suspending use
of
such Market-Making Registration Statement required under applicable securities
laws to be issued for so long as valid business reasons exist and the Issuer
shall not be obligated to amend or supplement such Market-Making Registration
Statement or the prospectus included therein until it reasonably deems
appropriate. Goldman, Sachs & Co. agrees that upon receipt of any notice
from the Issuer pursuant to this Section 3(i), it will discontinue use of each
Market Making Registration Statement until receipt of copies of the supplemented
or amended prospectus relating thereto until advised in writing by the Issuer
that the use of a Market-Making Registration Statement may be resumed.
4.
Registration
Expenses
.
The
Issuer agrees to bear and to pay or cause to be paid promptly all expenses
incident to the Issuer’s performance of or compliance with this Agreement,
including (a) all Commission and any NASD registration, filing and review
fees and expenses including
reasonable
fees and disbursements of counsel for the Eligible Holders, Goldman, Sachs
&
Co. and Affiliate Investors in connection with such registration, filing
and
review, (b) all fees and expenses in connection with the qualification of
the Registrable Securities, Securities or Exchange Securities, as applicable,
for offering and sale under the State securities and blue sky laws referred
to
in Section 3(d)(xii) and determination of their eligibility for investment
under the laws of such jurisdictions as the Electing Holders, Goldman, Sachs
& Co. or Affiliate Investors may designate, including any reasonable fees
and disbursements of counsel for the Electing Holders, Goldman, Sachs & Co.
or Affiliate Investors in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production,
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 expenses
of
preparing the Registrable Securities, Securities or Exchange Securities,
as
applicable, for delivery and the expenses of printing or producing any selling
agreements and blue sky or legal investment memoranda and all other documents
in
connection with the offering, sale or delivery of Registrable Securities,
Securities or Exchange Securities, as applicable, to be disposed of (including
certificates representing the Registrable Securities, Securities or Exchange
Securities, as applicable), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Registrable Securities, Securities
or Exchange Securities, as applicable, and the preparation of documents referred
in clause (c) above, (e) fees and expenses of the Trustee under the
Indentures, any agent of the Trustee and any counsel for the Trustee and
of any
custodian, (f) the Issuer’s internal expenses (including all salaries and
expenses of the Issuer’s officers and employees performing legal or accounting
duties), (g) reasonable fees, disbursements and expenses of counsel and
independent certified public accountants of the Issuer, (h) reasonable
fees, disbursements and expenses of one counsel for the Electing Holders
retained in connection with a Shelf Registration, as selected by the Electing
Holders of at least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Issuer), one counsel for Goldman, Sachs & Co. retained
in connection with a Market Making Shelf Registration, as selected by Goldman,
Sachs & Co., and one counsel for the Affiliate Investors retained in
connection with a Shelf Registration, as selected by the Affiliate Investors
of
at least a majority in aggregate principal amount of the Registrable Securities
held by such Affiliate Investors, (i) any fees charged by securities rating
services for rating the Registrable Securities, Securities or Exchange
Securities, as applicable, and (j) fees, expenses and disbursements of any
other persons, including special experts, retained by the Issuer 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, Goldman, Sachs & Co. or Affiliate
Investors, the Issuer 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, or Goldman, Sachs & Co. or any Affiliate
Investor, as applicable, shall pay all agency fees and commissions and
underwriting discounts and commissions, if any, and transfer taxes, if any,
attributable to the sale of such Registrable Securities, Securities or Exchange
Securities, as applicable, 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
.
Each
of
the Issuer and the Guarantors, jointly and severally
,
represent and warrant to, and agree with, each Purchaser and each of the holders
from time to time of Registrable Securities that:
(a)
Each
registration statement covering Registrable Securities, Securities or Exchange
Securities, as applicable, and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to Section 3(c)
or Section 3(d) 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, 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; and at all times subsequent to the Effective Time when a prospectus
would be required to be delivered under the Securities Act, other than
(A) from (i) such time as a notice has been given to holders of
Registrable Securities or Goldman, Sachs & Co. or Affiliate Investors, as
applicable, pursuant to Section 3(c)(iii)(G) or Section 3(d)(viii)(G)
until (ii) such time as the Issuer furnishes an amended or supplemented
prospectus pursuant to Section 3(c)(iv) or Section 3(e) or
(B) during any applicable Suspension Period, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(d), 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 Issuer by a holder of Registrable Securities, Goldman, Sachs & Co. or an
Affiliate Investor, as applicable, expressly for use therein, which information,
with respect to information provided by Goldman, Sachs & Co. for inclusion
in the prospectus forming a part of the Market Making Registration Statement
the
parties hereto agree will be limited to the statements concerning the
market-making activities of Goldman, Sachs & Co. to be set forth on the
cover page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus.
(b)
Any
documents incorporated by reference in any prospectus referred to in
Section 5(a), when they become or became effective or are or were filed
with the Commission, as the 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 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 Issuer by a holder of Registrable Securities, Goldman, Sachs & Co. or an
Affiliate Investor, as applicable, expressly for use therein, which information,
with respect to information provided by Goldman, Sachs & Co. for inclusion
in the prospectus forming a part of the Market Making Registration Statement
the
parties hereto agree will be limited to the statements concerning the
market-making activities of Goldman, Sachs & Co. to be set forth on the
cover page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus.
(c)
The
compliance by the Issuer with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not (i) conflict
with or result in a breach or violation 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 Issuer or any of its subsidiaries is a party or by which the Issuer
or
any of its subsidiaries is bound or to which any of the property or assets
of
the Issuer or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the certificate of incorporation, as amended,
or
the by-laws or other governing documents, as applicable, of the Issuer or
the
Guarantors or (iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuer or any of its subsidiaries or any of their
respective properties, except in the case of (i) and (iii) above, for such
conflicts, breaches or defaults as would not reasonably be expected to result
in
a Material Adverse Effect (as defined in the Purchase Agreement); 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 Issuer and the Guarantors of the transactions contemplated
by this Agreement, except (w) the registration under the Securities Act of
the Registrable Securities, Securities or Exchange Securities, as applicable,
and qualification of the Indentures under the Trust Indenture Act and
(x) 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,
Securities or Exchange Securities, as applicable, (y) such consents,
approvals, authorizations, registrations or qualifications that have been
obtained and are in full force and effect as of the date hereof and
(z) such consents, approvals, authorizations, registrations or
qualifications that the failure to have would not reasonably be expected
to have
a Material Adverse Effect.
(d)
This
Agreement has been duly authorized, executed and delivered by the Issuer and
each Guarantor.
6.
Indemnification
and Contribution
.
(a)
Indemnification
by the Issuer and the Guarantors.
The
Issuer and the Guarantors, jointly and severally, will indemnify and hold
harmless each of the holders of any such series of Registrable Securities
included in an Exchange Registration Statement, each of the Electing Holders
of
Registrable Securities included in a Shelf Registration Statement, Goldman,
Sachs & Co. as holder of Securities or Exchange Securities included in a
Market Making Shelf Registration Statement and each of the Affiliate Investors
as holders of Securities or Exchange Securities included in a Market Making
Shelf Registration Statement against any losses, claims, damages or liabilities,
joint or several, to which such holder, Goldman, Sachs & Co., such Electing
Holder or Affiliate Investor 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 Exchange Registration
Statement or Secondary Offer Registration Statement, as the case may be, under
which such series of Registrable Securities, Securities or Exchange Securities,
as applicable, were registered under the Securities Act, or any preliminary,
final or summary prospectus (including, without limitation, any “issuer free
writing prospectus” as defined in Rule 433) contained therein or furnished
by the Issuer to any such holder, Goldman, Sachs & Co., such Electing Holder
or Affiliate Investor 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 will reimburse any such holder, Goldman, Sachs & Co., such
Electing Holder and such Affiliate Investor for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred;
provided,
however,
that
neither the
Issuer
nor the Guarantors shall 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 (including, without limitation, any “issuer free writing prospectus”
as defined in Rule 433), or amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Issuer by
such
person expressly for use therein, which information, with respect to information
provided by Goldman, Sachs & Co. for inclusion in the prospectus forming a
part of the Market Making Registration Statement the parties hereto agree
will
be limited to the statements concerning the market-making activities of Goldman,
Sachs & Co. to be set forth on the cover page and in the “Plan of
Distribution” section of the prospectus forming a part of the Market Making
Shelf Registration Statement and in the analogous section of the Canadian
wrapper, if any, of such prospectus.
(b)
Indemnification
by the Holders.
Each
holder of Securities, severally and not jointly, will (i) indemnify and
hold harmless the Issuer, the Guarantors, and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the
Issuer, the Guarantors 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 (including, without limitation, any “issuer free writing
prospectus” as defined in Rule 433) contained therein or furnished by the
Issuer to any such Electing Holder, 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 Issuer by such Electing Holder expressly for use
therein, and (ii) reimburse the Issuer and the Guarantors for any legal or
other expenses reasonably incurred by the Issuer and the Guarantors in
connection with investigating or defending any such action or claim as such
expenses are incurred;
provided,
however,
that no
such Electing 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 proceeds to be received by such Electing Holder from the sale of such
Electing Holder’s Registrable Securities pursuant to such
registration.
(c)
Indemnification
by Goldman, Sachs & Co.
The
Issuer may require, as a condition to including any Securities or Exchange
Securities in the Market Making Shelf Registration Statement filed pursuant
to
Section 2(c) hereof and to entering into any underwriting agreement with respect
thereto, that the Issuer shall have received an undertaking reasonably
satisfactory to it from each underwriter named in any such underwriting
agreement, severally and not jointly, to, and Goldman, Sachs & Co. shall,
and hereby agrees to, (i) indemnify and hold harmless the Issuer and the
Guarantors against any losses, claims, damages or liabilities to which the
Issuer or the Guarantors 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 the Market Making Shelf
Registration Statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Issuer to Goldman, Sachs & Co. or to
any such 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 Issuer by Goldman, Sachs
& Co. or such underwriter expressly for use therein, which information, with
respect to information provided by Goldman, Sachs & Co. for inclusion in the
prospectus forming a part of the Market Making Registration Statement the
parties hereto agree will be limited to the statements concerning the
market-making activities of Goldman, Sachs & Co. to be set forth on the
cover page and in the “Plan of Distribution” section of the prospectus forming a
part of the Market Making Shelf Registration Statement and in the analogous
section of the Canadian wrapper, if any, of such prospectus and (ii) reimburse
the Issuer for any legal or other expenses reasonably incurred by the Issuer
in
connection with investigating or defending any such action or claim as such
expenses are incurred;
provided
,
however
,
that,
in the case of Securities held by Goldman, Sachs & Co. at the time of the
Exchange Offer, Goldman, Sachs & Co. shall not be required to undertake
liability to any person under this Section 6(c) for any amounts in excess
of the
dollar amount of the proceeds to be received by Goldman, Sachs & Co. from
the sale of such Securities by Goldman, Sachs & Co. pursuant to the Market
Making Shelf Registration.
(d)
Indemnification
by Affiliate Investors in Connection with the Market Making Shelf
Registration
.
The
Issuer may require, as a condition to including any Securities or Exchange
Securities in the Market Making Shelf Registration Statement filed pursuant
to
Section 2(c) hereof and to entering into any underwriting agreement with respect
thereto, that the Issuer shall have received an undertaking reasonably
satisfactory to it from each underwriter named in any such underwriting
agreement, severally and not jointly, to, and each Affiliate Investor shall,
and
hereby agrees to, (i) indemnify and hold harmless the Issuer and the Guarantors
against any losses, claims, damages or liabilities to which the Issuer or the
Guarantors 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 the Market Making Shelf Registration Statement,
or any preliminary, final or summary prospectus contained therein or furnished
by the Issuer to such Affiliate Investor or to any such 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 Issuer by such Affiliate
Investor or such underwriter expressly for use therein, and (ii) reimburse
the
Issuer for any legal or other expenses reasonably incurred by the Issuer in
connection with investigating or defending any such action or claim as such
expenses are incurred;
provided
,
however
,
that,
in the case of Securities held by Goldman, Sachs & Co. at the time of the
Exchange Offer, Goldman, Sachs & Co. shall not be required to undertake
liability to any person under this Section 6(d) for any amounts in excess of
the
dollar amount of the proceeds to be received by Goldman, Sachs & Co. from
the sale of such Securities by Goldman, Sachs & Co. pursuant to the Market
Making Shelf Registration.
(e)
Notices
of Claims, Etc.
Promptly
after receipt by an indemnified party under subsection (a), (b), (c) or (d)
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 indemnification 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 otherwise than under
the indemnification provisions of or contemplated by
Section 6(a), 6(b), 6(c) or 6(d). 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,
except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party
of its election so to assume the defense thereof, 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 prior 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.
(f)
Contribution.
If
for
any reason the indemnification provisions contemplated by Section 6(a),
6(b), 6(c) or 6(d) 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(f) were
determined by pro rata allocation (even if the holders 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(f). 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 legal or other fees
or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(f), none of any holder, Affiliate Investor or,
in the case of a Market Making Shelf Registration relating to the sale by
Goldman, Sachs & Co. of Securities held by it at the time of the Exchange
Offer, Goldman, Sachs & Co. shall be required to contribute any amount in
excess of the amount by which the dollar amount of the proceeds received by
such
holder from the sale of any Registrable Securities or Goldman, Sachs & Co.
or any Affiliate Investor from the sale of any such Securities (after
deducting
any fees, discounts and commissions applicable thereto) exceeds the amount
of
any damages which such holder or Goldman, Sachs & Co. or such Affiliate
Investor, as applicable, have otherwise been required to pay by reason of
such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person
who was
not guilty of such fraudulent misrepresentation. The holders’, Goldman, Sachs
& Co.’s and any Affiliate Investor’s obligations in this Section 6(f)
to contribute shall be several in proportion to the principal amount of
Registrable Securities registered by them and not joint.
(g)
The
obligations of the Issuer and the Guarantors under this Section 6 shall be
in addition to any liability which the Issuer or the Guarantors may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director and partner of Goldman, Sachs & Co., each holder, Affiliate
Investor, and each person, if any, who controls Goldman, Sachs & Co., any
holder, Affiliate Investor within the meaning of the Securities Act; and the
obligations of Goldman, Sachs & Co., the holders, the Affiliate Investors
contemplated by this Section 6 shall be in addition to any liability which
Goldman, Sachs & Co., the respective holder or Affiliate Investor may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Issuer or any of the Guarantors (including any
person who, with his consent, is named in any registration statement as about
to
become a director of the Issuer or any of the Guarantors) and to each person,
if
any, who controls the Issuer within the meaning of the Securities
Act.
7.
Underwritten
Offerings
.
Each
holder of Registrable Securities hereby agrees with the Issuer and each other
such holder that no holder of Registrable Securities may participate in any
underwritten offering hereunder unless (a) the Issuer gives its prior
written consent to such underwritten offering, (b) the managing underwriter
or underwriters thereof shall be designated by Electing Holders holding 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 Issuer, (c) each holder
of Registrable Securities participating in such underwritten offering agrees
to
sell such holder’s Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled selecting the
managing underwriter or underwriters hereunder and (d) each holder of
Registrable Securities participating in such underwritten offering completes
and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8.
Rule 144
.
The
Issuer covenants to the holders of Registrable Securities, Goldman, Sachs &
Co. and the Affiliate Investors that to the extent it shall be required to
do so
under the Exchange Act, the Issuer shall timely file the reports required to
be
filed by it under the Exchange Act or the Securities Act (including the reports
under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144), and shall take such further action as any holder of
Registrable Securities, Goldman, Sachs & Co. or any Affiliate Investor may
reasonably request, all to the extent required from time to time to enable
such
holder to sell Registrable Securities or Goldman, Sachs & Co. and the
Affiliate Investors to sell Securities or Exchange Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144. Upon the request of any holder of Registrable
Securities, Goldman,
Sachs
& Co. or any Affiliate Investor in connection with that holder’s, Goldman,
Sachs & Co.’s or that Affiliate Investor’s sale pursuant to Rule 144,
the Issuer shall deliver to such holder, Goldman, Sachs & Co. or Affiliate
Investor a written statement as to whether it has complied with such
requirements.
9.
Miscellaneous
.
(a)
No
Inconsistent Agreements.
The
Issuer represents, warrants, covenants and agrees that it has not granted,
and
shall not grant, registration rights with respect to Registrable Securities,
Securities or Exchange Securities, as applicable, or any other securities which
would be inconsistent with the terms contained in this Agreement.
(b)
Specific
Performance.
Subject
to the provisions set forth in Section 3(d) hereof, the parties hereto
acknowledge that there would be no adequate remedy at law if the Issuer fails
to
perform any of its obligations hereunder and that the Purchasers and the holders
from time to time of the Registrable Securities may be irreparably harmed by
any
such failure, and accordingly agree that the Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of the
Issuer 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. Time shall be of the essence in this Agreement.
(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, by facsimile 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 Issuer, to it at 100
Mission Ridge, Goodlettsville, Tennessee 37072, Attention Secretary and if
to a
holder, to the address of such holder set forth in the security register or
other records of the Issuer, or to such other address as the Issuer or any
such
holder may have furnished to the other 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 parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. 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 beneficiary hereof 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 all
of
the applicable terms and provisions of this Agreement. If the Issuer shall
so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable
terms hereof.
(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 Goldman, Sachs & Co., any Affiliate
Investor or any holder of Registrable Securities, any director, officer or
partner of Goldman, Sachs & Co., such Affiliate Investor or such holder, or
any controlling person of any of the foregoing, and shall survive delivery
of
and
payment for the Registrable Securities pursuant to the Purchase Agreement
and
the transfer and registration of Registrable Securities by such holder or
of
Securities or Exchange Securities by Goldman, Sachs & Co. or any Affiliate
Investor and the consummation of an Exchange Offer.
(f)
Governing
Law.
This
Agreement shall be governed by and construed 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 Indentures
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 Issuer and
the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding and Goldman, Sachs & Co.;
provided
,
however
,
that
any such amendment or waiver affecting solely provisions of this Agreement
relating to the Market Making Registration may be effected by a written
instrument duly executed solely by the Issuer and Goldman, Sachs & Co. 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 and the
address of Goldman, Sachs & Co. and each Affiliate Investor shall be made
available for inspection and copying on any Business Day by Goldman, Sachs
&
Co., any Affiliate Investor or any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Indentures and
this
Agreement) at the offices of the Issuer at the address thereof set forth in
Section 9(c) and at the office of the Trustee under the
Indentures.
(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.
(k)
Severability
.
If any
provision of this Agreement, or the application thereof in any circumstance,
is
held to be invalid, illegal or unenforceable in any respect for any reason,
the
validity, legality and enforceability of such provision in every other respect
and of the remaining provisions contained in this Agreement shall not be
affected or impaired thereby.
If
the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each
of
the Purchasers, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Purchasers, the Guarantors and the Issuer.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Issuer for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very
truly
yours,
BUCK
ACQUISITION
CORP.
By:
/s/
Raj Agrawal
Na
me:
Raj
Agrawal
Title: Vice President
DOLLAR
GENERAL
CORPORATION
By:
/s/
David M. Tehle
Name: David M. Tehle
Title: Executive Vice-President and Chief Financial Officer
DG
RETAIL,
LLC
DOLGENCORP,
INC.
DOLGENCORP
OF NEW
YORK, INC.
DOLGENCORP
OF TEXAS,
INC.
DG
TRANSPORTATION,
INC.
DG
LOGISTICS
LLC
DGC
PROPERTIES
LLC
SOUTH
BOSTON
HOLDINGS, INC.
SUN-DOLLAR,
L.P.
SOUTH
BOSTON
FF&E, LLC
DG
PROMOTIONS, INC.
[f/k/a
Nations Title Company, Inc.]
DOLLAR
GENERAL
INVESTMENT, INC.
DOLLAR
GENERAL
MERCHANDISING, INC.
DOLLAR
GENERAL
PARTNERS
DGC
PROPERTIES OF
KENTUCKY, LLC
By:
/s/
David M. Tehle
Name: David M. Tehle
Title: Authorized Signatory
Accepted
as of the date hereof:
Goldman,
Sachs & Co.
By:
/s/
Goldman, Sachs & Co.
(Goldman,
Sachs & Co.)
Citigroup
Global Markets Inc.
By:
/s/
Timothy P. Dilworth
Name:
Timothy P. Dilworth
Title:
Director
Lehman
Brothers Inc.
By:
/s/
William J. Hughes
Name:
William J. Hughes
Title: Managing Director
Wachovia
Capital Markets, LLC
By:
/s/
Kurt Brechnitz
Name:
Kurt Brechnitz
Title: Managing Director
Exhibit
A
Dollar
General Corporation
INSTRUCTION
TO DTC PARTICIPANTS
(Date
of Mailing)
URGENT
- IMMEDIATE ATTENTION REQUESTED
DEADLINE
FOR RESPONSE: [DATE]
The
Depository Trust Company (
“DTC”
)
has
identified you as a DTC Participant through which beneficial interests in Dollar
General Corporation’s (the
“Company”
)
10.625%
Senior Notes due 2015 and 11.875% / 12.625 Senior Subordinated Toggle Notes
due
2017 (collectively, the
“Securities”
)
are
held.
The
Company is in the process of registering the Securities under the Securities
Act
of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It
is
important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible
as their
rights to have the Securities included in the registration statement depend
upon
their returning the Notice and Questionnaire by
[
Deadline
For Response
]
.
Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact 100 Mission Ridge, Goodlettsville, Tennessee 37072,
615-855-4000.
*
Not
less than 28 calendar days from date of mailing.
Dollar
General Corporation
Notice
of
Registration Statement
and
Selling
Securityholder Questionnaire
(Date)
Reference
is hereby made to the Exchange and Registration Rights Agreement (the
“Exchange
and Registration Rights Agreement”
)
among
Buck
Acquisition Corp., Dollar General Corporation (the
“Company”
)
,
the
Guarantors name therein and the Purchasers named therein. Pursuant to the
Exchange and Registration Rights Agreement, the Company has filed or will file
with the United States Securities and Exchange Commission (the
“Commission”
)
a
registration statement on Form
[__]
(the
“Shelf
Registration Statement”
)
for the
registration and resale under Rule 415 of the Securities Act of 1933, as
amended (the
“Securities
Act”
),
of the
Company’s 10.625% Senior Notes due 2015 and 11.875% / 12.625 Senior Subordinated
Toggle Notes due 2017 (collectively, the
“Securities”
).
A copy
of the Exchange and Registration Rights Agreement has been filed as an exhibit
to the Shelf Registration Statement and can be obtained from the Commission’s
website at
www.sec.gov
.
All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each
beneficial owner of Registrable Securities (as defined below) is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in
the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire (
“Notice
and Questionnaire”
)
must be
completed, executed and delivered to the Company’s counsel at the address set
forth herein for receipt ON OR BEFORE
[
Deadline
for Response
]
.
Beneficial owners of Registrable Securities who do not properly complete,
execute and return this Notice and Questionnaire by such date (i) will not
be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of
Registrable Securities.
Certain
legal consequences arise from being named as a selling securityholder in the
Shelf Registration Statement and related Prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The
term
“Registrable
Securities”
is
defined in the Exchange and Registration Rights Agreement.
ELECTION
The
undersigned holder (the
“Selling
Securityholder”
)
of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities
by
the terms and conditions of this Notice and Questionnaire and the Exchange
and
Registration Rights Agreement, including, without limitation, Section 6 of
the Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
(11)
Pursuant
to the Exchange and Registration Rights Agreement, the undersigned has agreed
to
indemnify and hold harmless the Company, its officers who sign any Shelf
Registration Statement, and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act of 1934, as amended (the
“Exchange
Act”
),
against certain loses arising out of an untrue statement, or the alleged untrue
statement, of a material fact in the Shelf Registration Statement or the related
prospectus or the omission, or alleged omission, to state a material fact
required to be stated in such Shelf Registration Statement or the related
prospectus, but only to the extent such untrue statement or omission, or alleged
untrue statement or omission, was made in reliance on and in conformity with
the
information provided in this Notice and Questionnaire.
Upon
any
sale of Registrable Securities pursuant to the Shelf Registration Statement,
the
Selling Securityholder will be required to deliver to the Company and Trustee
the Notice of Transfer set forth in Appendix A to the Prospectus and as
Exhibit B to the Exchange and Registration Rights Agreement.
The
Selling Securityholder hereby provides the following information to the Company
and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1)
(a)
Full
legal name of Selling Securityholder:
(b)
Full
legal name of registered Holder (if not the same as in (a) above) of Registrable
Securities listed in Item (3) below:
(c)
Full
legal name of DTC Participant (if applicable and if not the same as (b) above)
through which Registrable Securities listed in Item (3) below are
held:
(2)
Address
for notices to Selling Securityholder:
Telephone:
Fax:
Contact
Person:
E-mail
for
Contact Person:
(3)
Beneficial
Ownership of Securities:
Except
as set forth below in this Item (3), the undersigned does not beneficially
own any Securities.
(a)
Principal
amount of Registrable Securities beneficially owned:
CUSIP
No(s).
of such Registrable Securities:
(b)
Principal
amount of Securities other than Registrable Securities beneficially
owned:
CUSIP
No(s).
of such other Securities:
(c)
Principal
amount of Registrable Securities that the undersigned wishes to be included
in
the Shelf Registration Statement:
CUSIP
No(s). of such
Registrable Securities to be included in the Shelf Registration
Statement:
(4)
Beneficial
Ownership of Other Securities of the Company:
Except
as set forth below in this Item (4), the undersigned Selling Securityholder
is not the beneficial or registered owner of any other
securities
of the Company, other than the Securities listed above in
Item (3).
State
any
exceptions here:
(
5)
Individuals
who exercise dispositive powers with respect to the Securities:
If the
Selling
Securityholder is not an entity that is required to file reports with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (a
“Reporting
Company”
),
then the Selling Securityholder must disclose the name of the natural person(s)
who exercise sole or shared dispositive powers with respect to the Securities.
Selling Securityholders should disclose the beneficial holders, not nominee
holders or other such others of record. In addition, the Commission has provided
guidance that Rule 13d-3 of the Securities Exchange Act of 1934 should be
used by analogy when determining the person or persons sharing voting and/or
dispositive powers with respect to the Securities.
(a)
Is
the
holder a Reporting Company?
Yes
No
If
“No”,
please answer Item (5)(b).
|
(b)
|
List
below the individual or individuals who exercise dispositive powers
with
respect to the Securities:
|
Please
note that the names of the persons listed in (b) above will be included in
the
Shelf Registration Statement and related Prospectus.
(6)
Relationships
with the Company:
Except
as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with
the
Company (or its predecessors or affiliates) during the past three
years.
State
any
exceptions here:
(7)
Plan
of
Distribution:
Except
as set forth below, the undersigned Selling Securityholder intends to distribute
the Registrable Securities listed above in Item (3) only as follows (if at
all):
Such Registrable Securities may be sold from time to time directly by the
undersigned Selling Securityholder. Such Registrable Securities may be sold
in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses
or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities
may
be listed or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In connection
with sales of the Registrable Securities or otherwise, the Selling
Securityholder may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities in the course
of
hedging the positions they assume. The Selling Securityholder may also sell
Registrable Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State
any
exceptions here:
Note:
In no event may such method(s) of distribution take the form of an underwritten
offering of Registrable Securities without the prior written agreement of the
Company.
(8)
Broker-Dealers:
The
Commission requires that all Selling Securityholders that are registered
broker-dealers or affiliates of registered broker-dealers be so identified
in
the Shelf Registration Statement. In addition, the Commission requires that
all
Selling Securityholders that are registered broker-dealers be named as
underwriters in the Shelf Registration Statement and related Prospectus, even
if
they did not receive the Registrable Securities as compensation for underwriting
activities.
(a)
State
whether the undersigned Selling Securityholder is a registered
broker-dealer:
Yes
No
(b)
If
the
answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) below if
applicable.
Your
answers to (i) and (ii) below, and (iii) below if
applicable,
will be included in the Shelf Registration Statement and related
Prospectus.
|
(i)
|
Were
the Securities acquired as compensation for underwriting
activities?
|
Yes
No
If
you
answered “Yes”, please provide a brief description of the transaction(s) in
which the Securities were acquired as compensation:
|
(ii)
|
Were
the Securities acquired for investment
purposes?
|
Yes
No
|
(iii)
|
If
you answered “No” to both (i) and (ii), please explain the Selling
Securityholder’s reason for acquiring the
Securities:
|
(c)
State
whether the undersigned Selling Securityholder is an affiliate of a registered
broker-dealer and, if so, list the name(s) of the broker-dealer
affiliate(s):
(d)
If
you
answered “Yes” to question (c) above:
|
(i)
|
Did
the undersigned Selling Securityholder purchase Registrable Securities
in
the ordinary course of business?
|
Yes
No
If
the
answer is “No” to question (d)(i), provide a brief explanation of the
circumstances in which the Selling Securityholder acquired the Registrable
Securities:
|
(ii)
|
At
the time of the purchase of the Registrable Securities, did the
undersigned Selling Securityholder have any agreements, understandings
or
arrangements, directly or indirectly, with any person to dispose
of or
distribute the Registrable
Securities?
|
Yes
No
If
the
answer is “Yes” to question (d)(ii), provide a brief explanation of such
agreements, understandings or arrangements:
If
the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will be
named as an underwriter in the Shelf Registration Statement and the related
Prospectus.
(9)
Hedging
and short sales:
(a)
State
whether the
undersigned Selling Securityholder has or will enter into “hedging transactions”
with respect to the Registrable Securities:
Yes
No
If
“Yes”,
provide below a complete description of the hedging transactions into which
the
undersigned Selling Securityholder has entered or will enter and the purpose
of
such hedging transactions, including the extent to which such hedging
transactions remain in place:
(b)
Set
forth
below is Interpretation A.65 of the Commission’s July 1997 Manual of Publicly
Available Interpretations regarding short selling:
“An
issuer filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. One of the selling shareholders wanted
to do a short sale of common stock “against the box” and cover the short sale
with registered shares after the effective date. The issuer was advised that
the
short sale could not be made before the registration statement becomes
effective, because the shares underlying the short sale are deemed to be sold
at
the time such sale is made. There would, therefore, be a violation of
Section 5 if the shares were effectively sold prior to the effective
date.”
By
returning this Notice and Questionnaire,
the
undersigned Selling Securityholder will be deemed to be aware of the foregoing
interpretation.
*
*
*
*
*
By
signing below, the Selling Securityholder acknowledges that it understands
its
obligation to comply, and agrees that it will comply, with the provisions of
the
Exchange Act, particularly Regulation M (or any successor rule or
regulation).
The
Selling Securityholder hereby acknowledges its obligations under the Exchange
and Registration Rights Agreement to indemnify and hold harmless the Company
and
certain other persons as set forth in the Exchange and Registration Rights
Agreement.
In
the
event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By
signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (9) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In
accordance with the Selling Securityholder’s obligation under Section 3(d)
of the Exchange and Registration Rights Agreement to provide such information
as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to
the
date hereof at any time while the Shelf Registration Statement remains in effect
and to provide such additional information that the Company may reasonably
request regarding such Selling Securityholder and the intended method of
distribution of Registrable Securities in order to comply with the Securities
Act. Except as otherwise provided in the Exchange and Registration Rights
Agreement, all notices hereunder and pursuant to the
Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as
follows:
(i)
To
the
Company:
_________________________
_________________________
_________________________
_________________________
_________________________
(ii)
With
a
copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
Once
this
Notice and Questionnaire is executed by the Selling Securityholder and received
by the Company’s counsel, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities beneficially owned
by
such Selling Securityholder and listed in Item (3) above. This Notice and
Questionnaire shall be governed in all respects by the laws of the State of
New
York.
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by
its
duly authorized agent.
Dated:
(Print/type
full legal name of
beneficial owner of Registrable Securities)
By:
Name:
Title:
PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR
BEFORE
[
DEADLINE
FOR RESPONSE
]
TO THE
COMPANY’S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
Exhibit
B
NOTICE
OF
TRANSFER PURSUANT TO REGISTRATION STATEMENT
Wells
Fargo Bank, N.A.
Dollar
General Corporation
c/o
Wells
Fargo Bank, N.A.
Corporate
Trust Services
707
Wilshire Blvd, 17th Floor
Los
Angeles, CA 90017
Attention:
Trust Officer
Re:
Dollar
General Corporation (the
“Company”
)
10.625%
Senior
Notes due 2015
11.875% / 12.625% Senior Subordinated Notes due 2017
Dear
Sirs:
Please
be
advised that
has
transferred $
aggregate
principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form
[
]
(File
No. 333-
)
filed
by the Company.
We
hereby
certify that the prospectus delivery requirements, if any, of the Securities
Act
of 1933, as amended, have been satisfied and that the above-named beneficial
owner of the Notes is named as a “Selling Holder” in the Prospectus dated
[date]
or in
supplements thereto, and that the aggregate principal amount of the Notes
transferred are the Notes listed in such Prospectus opposite such owner’s
name.
Dated:
Very
truly
yours,
(Name)
By:
(Authorized
Signature)
B-1
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”), effective as of the Effective Date is made
and entered into by and between
DOLLAR
GENERAL CORPORATION
(the
“Company”), and David L. Beré (“Employee”).
W
I T
N E S S E T H:
WHEREAS,
Company desires to employ Employee upon the terms and subject to the conditions
hereinafter set forth, and Employee desires to accept such
employment;
NOW,
THEREFORE, for and in consideration of the premises, the mutual promises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
Employment
Terms
1.
Effective
Date
.
This
Agreement is effective as of the closing of the transactions contemplated in
that certain Agreement and Plan of Merger by and among Buck Holdings, L.P.,
Buck
Acquisition Corp., and Dollar General Corporation dated March 11, 2007 (the
“Effective Date”).
2.
Employment
.
Subject
to the terms and conditions of this Agreement, the Company agrees to employ
Employee as Interim Chief Executive Officer of Dollar General Corporation during
the Initial Term and any Initial Term Extension and as President and Chief
Operating Officer during the Transition Period and any Subsequent Employment
Term.
3.
Term
.
The
term
of this Agreement shall begin on the Effective Date and shall continue until
December 31, 2007 (“Initial Term”).
The
Initial Term may be extended by mutual written agreement of the parties hereto
entered into before the expiration of the Initial Term (“Initial Term
Extension”). In the event a new chief executive officer is hired by the Company
during the Initial Term or an Initial Term Extension, as applicable, the Initial
Term or the Initial Term Extension may be extended at the Company’s option for a
period of three months following the date such new chief executive officer’s
employment with the Company commences or, at the request of the Company, such
longer period as Employee agrees in writing (“Transition Period”). The Company
shall notify Employee in writing of its intent to initiate the Trans
ition
Period and the length of the Transition Period (which may be extended as the
same may be mutually agreed by the parties hereto in writing) no later than
five
(5) business days before the date as of which the new chief executive officer’s
employment with the Company commences. If there occurs a Transition Period,
upon
expiration thereof, any period of time during which Employee remains employed
with the Company shall be deemed the “Subsequent
Employment
Term” (the Initial Term together with any Initial Term Extension, the Transition
Period and any Subsequent Employment Term, the “Term”). The Agreement shall
continue through the Term, unless terminated earlier pursuant to Sections
7, 8,
9, 10 or 11 hereof.
4.
Position,
Duties and Administrative Support
.
a.
Position
.
During
the Initial Term and any Initial Term Extension, Employee shall serve as Interim
Chief Executive Officer and while so employed will also serve as a member of
the
Board of Directors of the Company during the Initial Term and any Initial Term
Extension. Employee shall report to the Board of Directors and perform such
duties and responsibilities as may be prescribed from time−to−time by the Board
of Directors, which shall be consistent with the responsibilities of similarly
situated executives of comparable companies in similar lines of business. During
the Transition Period and any Subsequent Employment Term, Employee shall serve
as President and Chief Operating Officer of the Company, and shall report to
the
Chief Executive Officer of the Company, and perform such duties and
responsibilities as are consistent with the responsibilities of similarly
situated executives of comparable companies in similar lines of
business.
b.
Full-Time
Efforts
.
Employee shall perform and discharge faithfully and diligently such duties
and
responsibilities and shall devote Employee’s full-time efforts to the business
and affairs of Company. Employee agrees to promote the best interests of the
Company and to take no action that is likely to damage the public image or
reputation of the Company, its subsidiaries or its affiliates.
c.
Administrative
Support
.
Employee shall be provided with office space and administrative
support.
d.
No
Interference With Duties
.
Employee shall not devote time to other activities which would inhibit or
otherwise interfere with the proper performance of Employee’s duties and shall
not be directly or indirectly concerned or interested in any other business
occupation, activity or interest other than by reason of holding a
non-controlling interest as a shareholder, securities holder or debenture holder
in a corporation quoted on a nationally recognized exchange (subject to any
limitations in the Company’s Code of Business Conduct and Ethics). Employee may
not serve as a member of a board of directors of a for-profit company, other
than the Company or any of its subsidiaries or affiliates or Alta Resources,
without the express approval of the Board of Directors; provided, however,
that
it shall not be a violation of this Agreement for
Employee
to manage personal business interests and investments, so long as such
activities do not interfere with the performance of Employee’s responsibilities
under this Agreement.
e.
Work
Standard
.
Employee agrees to comply with all terms and conditions set forth in this
Agreement, as well as all applicable Company work policies, procedures and
rules. Employee also agrees to comply with all federal, state and local
statutes, regulations and public ordinances governing Employee’s performance
hereunder.
5.
Change
in Position to CEO
.
a.
In
the
event that Employee is selected to be the new Chief Executive Officer of the
Company, such selection shall not be treated as a termination of this Agreement
without Good Reason and Employee will continue to be entitled to earn the FY
2007 Bonus if the selection occurs in FY 2007 and the FY 2008 Bonus if the
selection occurs in FY 2008; provided, however, that the FY 2008 Bonus shall
be
prorated if Employee terminates employment without Good Reason before the end
of
FY 2008. In addition, the Company and Employee will negotiate in good faith
to
enter into new employment arrangements in respect of Employee’s new position,
which will in any event include severance protections that are no less favorable
than the severance protections described in this Agreement.
6.
Compensation
.
a.
Base
Salary
.
Subject
to the terms and conditions set forth in this Agreement, so long as Employee
is
employed hereunder, the Company shall pay Employee, and Employee shall accept,
an annual base salary (“Base Salary”) of no less than Seven Hundred Twenty-One
Thousand Dollars ($721,000), which is the base salary being paid to Employee
immediately before the consummation of the transactions contemplated in that
certain Agreement and Plan of Merger by and among Buck Holdings, L.P., Buck
Acquisition Corp., and Dollar General Corporation dated March 11, 2007
(“Transaction”). The Base Salary shall be paid in accordance with Company’s
normal payroll practices and shall be increased from time to time in the
ordinary course of business at the sole discretion of the Company.
b.
Incentive
Bonus
.
(i)
FY
2007 Bonus
.
So long
as Employee remains employed through the relevant date required under the Bonus
Plan to receive payment of a bonus thereunder, Employee will be eligible to
earn
an annual cash bonus in respect of the Company’s fiscal year 2007 (“FY 2007”)
pursuant to the Company bonus plan in which Employee
participated
along with other officers of the Company immediately before the Effective
Date,
as the same may be amended from time to time, (the “Bonus Plan”), with an annual
target bonus amount of 140% of his Base Salary (the “Target Bonus”) and an
annual maximum bonus amount of 280% of his Base Salary (the “Maximum Bonus”),
payable in each case in accordance with the terms of the Bonus Plan and based
on
the achievement of performance criteria as described on
Appendix
A
attached
hereto. For clarification, upon satisfaction of the performance criteria
required for Employee to be paid the target bonus under the Bonus Plan for
FY
2007, Employee will be paid the Target Bonus and upon satisfaction of the
performance criteria required for Employee to be paid the maximum bonus under
the Bonus Plan for FY 2007, Employee will be paid the Maximum Bonus. The
threshold bonus Employee could earn under the Bonus Plan for FY 2007 will
remain
unchanged from the Bonus Plan as in effect immediately before the Effective
Date
at 35% of Base Salary (the “Threshold Bonus”) (the Threshold Bonus, the Target
Bonus or the Maximum Bonus that is payable under the Bonus Plan in respect
of FY
2007, the “FY 2007 Bonus”).
(ii)
FY
2008 Bonus.
If the
Term extends beyond the Initial Term but not beyond the end of
fiscal
year 2008 (“FY 2008”)
,
whether
or not
Employee
remains employed through the relevant date required under the Bonus Plan to
receive payment of a bonus thereunder, Employee will be eligible to earn a
cash
bonus in respect of FY 2008 under the Bonus Plan as in effect for FY 2008 (“FY
2008 Bonus”) equal to (x), (y) or (z), as described below, depending on whether
the applicable performance criteria is satisfied, pro rated for the number
of
months that the Term extends into FY 2008 relative to 12 months, where (x)
equals the Threshold Bonus, (y) equals the Target Bonus and (z) equals the
Maximum Bonus.
(iii)
Post
FY 2008
.
If the
Term extends beyond FY 2008, Employee shall be eligible for incentive
compensation for the remainder of the Term of this Agreement as determined
under
the Bonus Plan for officers of the Company, based on criteria established by
the
Board of Directors, in accordance with the terms and conditions of the bonus
program for officers of the Company.
c.
Stock
Based Compensation
.
During
the Term, Employee shall be eligible for award grants from time to time
consistent with the award grants made to similarly-situated officers of the
Company during such time as governed by the terms of the Company’s equity
incentive
plan, as may be amended, or any successor plan thereof (the “Stock Plan”), as
determined in the sole discretion of the Company.
d.
Vacation
.
During
the Term, Employee shall be entitled to four weeks paid vacation. Vacation
time
is granted on the anniversary of Employee’s employment with the Company, which,
for avoidance of doubt, is December 4, (“Start Date”) each year.
Any
available but unused vacation as of the annual anniversary of the
Start
Date
or at
Employee’s termination date shall be forfeited.
e.
Business
Expenses
.
During
the Term, Employee shall be reimbursed for all reasonable business expenses
incurred in carrying out the work hereunder. Employee shall adhere to the
Company’s expense reimbursement policies and procedures.
f.
Perquisites
.
During
the Term, Employee shall be entitled to receive such other executive
perquisites, fringe and other benefits as are provided to similarly-situated
officers and their families under any of the Company’s plans and/or programs in
effect from time to time.
7.
Benefits
.
During
the Term, Employee (and, where applicable, Employee’s eligible dependents) shall
be eligible to participate in those various Company welfare benefit plans,
practices and policies in place during the Term, if any, (including, without
limitation, medical, prescription, dental, vision, disability, employee life,
accidental death and travel accident insurance plans and programs, if any)
to
the extent and in accordance with the terms of those plans. In addition,
Employee shall be eligible to participate, pursuant to their terms, in any
other
benefit plans offered by the Company to similarly-situated officers or other
employees during the Term (excluding plans applicable solely to certain officers
of the Company in accordance with the express terms of such plans), including,
without limitation, the 401(k) Retirement and Savings Plan and CDP/SERP Plan.
Collectively the plans and arrangements described in this Section 6 and as
they
may be amended or modified in accordance with their terms are hereinafter
referred to as the “Benefits Plans.” Notwithstanding the above, Employee
understands and acknowledges that Employee is not eligible for benefits under
the Dollar General Corporation Severance Plan and that the only severance
benefits Employee is entitled to are set forth in this Agreement. During the
Initial Term, any Initial Term Extension and the Transition Period, the Company
will continue to lease and pay all rent and other charges being paid by the
Company as of the Effective Date on the apartment at 4040 Woodlawn Drive Unit
23, Nashville, Tennessee 37205 or a substantially similar apartment in a
substantially similar location.
8.
Termination
for Cause
.
This
Agreement may be terminated at any time by either party, with or without cause.
If this Agreement is terminated by Company for “Cause” (Termination for Cause)
as
that
term is defined below, it will be without any liability owing to Employee
or
Employee’s dependents and beneficiaries under this Agreement, except for those
benefits owed under any other plan or agreement covering Employee which shall
be
governed by the terms of such plan or agreement. Any one of the following
conditions or Employee conduct shall constitute “Cause”:
a.
Any
act
involving fraud or dishonesty;
b.
Any
material breach of any securities or other law or regulation or any Company
policy governing trading or dealing with stocks, securities, investments and
the
like or with inappropriate disclosure or “tipping” relating to any stock,
security or investment;
c.
Other
than as required by law, the carrying out of any activity or the making of
any
public statement which prejudices or reduces the good name and standing of
Company or any of its affiliates or would bring any one of these into public
contempt or ridicule;
d.
Attendance
at work in a state of intoxication or being found with any drug or substance
possession of which would amount to a criminal offense;
e.
Assault
or other act of violence; or
f.
Conviction
of or plea of guilty or
nolo
contendre
to any
felony whatsoever or any misdemeanor that would preclude employment under the
Company’s hiring policy.
A
termination for Cause shall be effective when the Company has given Employee
written notice of its intention to terminate for Cause, describing those acts
or
omissions that are believed to constitute Cause, and has given Employee an
opportunity to respond.
9.
Termination
upon Death
.
Notwithstanding
anything herein to the contrary, this Agreement shall terminate immediately
upon
Employee’s death. Employee’s estate shall be entitled to the Base Salary, if
any, accrued but unpaid as of his date of death, FY 2007 Bonus and FY 2008
Bonus
(to the extent not yet paid) and any other bonus, accrued in respect of any
previously completed fiscal year of the Company, but unpaid as of his date
of
death, but the Company shall have no further liability to Employee or Employee’s
dependents and beneficiaries under this Agreement, except for those benefits
owed under any other plan or agreement covering Employee which shall be governed
by the terms of such plan or agreement.
10.
Disability
.
If
a
Disability (as defined below) of Employee occurs during the Term, unless
otherwise prohibited by law, the Company may notify Employee of the Company’s
intention to terminate Employee’s employment. In that event, employment shall
terminate effective on the
termination
date provided in such notice of termination (the “Disability Effective Date”),
and this Agreement shall terminate. Employee shall be entitled to the Base
Salary, if any, accrued but unpaid as of the date his employment is terminated,
FY 2007 Bonus and FY 2008 Bonus (to the extent not yet paid) and any other
bonus, accrued in respect of any previously completed fiscal year of the
Company, but unpaid as of the date his employment is terminated, but the
Company
shall have no further liability to Employee, Employee’s dependents and
beneficiaries under this Agreement, except for those benefits owed under
any
other plan or agreement covering Employee which shall be governed by the
terms
of such plan or agreement. In this Agreement, “Disability”
means:
a.
A
long-term disability, as defined in the Company’s applicable long-term
disability plan as then in effect, if any; or
b.
Employee’s
inability to perform the duties under this Agreement in accordance with the
Company’s expectations because of a medically determinable physical or mental
impairment that (i) can reasonably be expected to result in death or (ii) has
lasted or can reasonably be expected to last longer than ninety (90) consecutive
days. Under this provision 9(b), unless otherwise required by law, the existence
of a Disability shall be determined by the Company, only upon receipt of a
written medical opinion from a qualified physician selected by or acceptable
to
the Company. In this circumstance, to the extent permitted by law, Employee
shall, if reasonably requested by the Company, submit to a physical examination
by that qualified physician. Nothing in this subsection (b) is intended to
nor
shall it be deemed to broaden or modify the definition of “disability” in the
Company’s long-term disability plan.
11.
Employee’s
Termination of Employment
.
a.
Notwithstanding
anything herein to the contrary, Employee may terminate employment and this
Agreement at any time, for no reason, with thirty (30) days written notice
to
Company. Upon such termination, Employee shall be entitled to any accrued but
unpaid Base Salary through the date of termination and such other vested
benefits under any other plan or agreement covering Employee which shall be
governed by the terms of such plan or agreement. Employee shall not be entitled
to those payments and benefits listed in Section 12 below, unless Employee
terminates employment for Good Reason, as defined below.
b.
Good
Reason
shall
mean any of the following actions taken by the Company:
(i)
A
reduction by the Company in Employee’s Base Salary or target bonus level under
the Bonus Plan;
provided,
however
,
that
any such reduction in the target
bonus
level under the Bonus Plan for any given period that occurs following the
end of
the Transition Period to 70% of Base Salary or higher will not constitute
Good
Reason hereunder;
(ii)
The
Company shall fail to continue in effect any significant Company-sponsored
compensation plan or benefit (without replacing it with a similar plan or with
a
compensation equivalent), unless such action is in connection with
across-the-board plan changes or terminations similarly affecting at least
ninety-five percent (95%) of all executive employees of the
Company;
(iii)
The
Company’s principal executive offices shall be moved to a location outside the
middle-Tennessee area, or Employee is required to be based anywhere other than
the Company’s principal executive offices;
(iv)
Without
Employee’s written consent, the assignment to Employee by the Company of duties
inconsistent with, or the significant reduction of the title, powers and
functions associated with, Employee’s position, titles or offices as described
in Section 3 above, unless such action is the result of a restructuring or
realignment of duties and responsibilities by the Company, for business reasons,
that leaves Employee at the same compensation and officer level (i.e., Vice
President, Senior Vice President, or Executive Vice President, etc.) and with
a
similar level of responsibility, or unless such action is the result of
Employee’s failure to meet pre-established and objective performance criteria;
provided,
however
,
that
such reduction in Employee’s title, duties or responsibilities will not
constitute Good Reason hereunder if such change is the result of a change in
the
position of such Executive from Interim Chief Executive Officer of the Company
to President and Chief Operating Officer of the Company;
(v)
Any
material breach by the Company of this Agreement; or
(vi)
The
failure of any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement
in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.
Good
Reason shall not include Employee’s death, Disability or Termination for Cause
or any isolated, insubstantial and inadvertent failure by the Company that
is
not in bad faith and is cured within ten (10) business days after the Employee
gives the Company notice of such event.
12.
Termination
without Cause or by Employee for Good Reason
.
a.
The
continuation of Base Salary and other payments and benefits described in section
11(b) below shall be triggered
only
upon one
or more of the following circumstances:
(i)
The
Company terminates Employee (as it may do at any time) without Cause; it being
understood that termination by death or Disability does not constitute
termination without Cause;
(ii)
Employee
terminates for Good Reason;
(iii)
The
Company fails to offer to renew, extend or replace this Employment Agreement
(other than the provisions in section 6.b.(i) or (ii) of this Agreement with
respect to bonus arrangements for fiscal years after FY 2008) before, at, or
within sixty (60) days after, the end of the Transition Period and Employee
resigns from employment with the Company within sixty (60) days after such
failure,
unless
such
failure is accompanied by a mutually agreeable severance arrangement between
the
Company and Employee.
b.
In
the
event of one of the triggers referenced in subsections 12(a)(i) through (iii)
above, then, upon the execution and effective date of the Release (which shall
be deemed to occur on the eighth day following such execution without
revocation) attached hereto and made a part hereof, and in lieu of and not
in
addition to the payments referenced in Section 13 below, Employee shall be
entitled to the following:
(i)
If
such
triggering event occurs prior to the payment of the FY 2007 bonus, a lump sum
payment equal to the FY 2007 Bonus, determined as if Employee had remained
employed through the date necessary to receive payment of the FY 2007 Bonus;
and
if the Term extends into FY 2008 and such triggering event occurs prior to
the
payment of the FY 2008 Bonus, a lump sum payment equal to the FY 2008 Bonus
that
would have been paid to Employee if Employee had remained employed through
the
date necessary to receive payment of the FY 2008 Bonus, but prorated based
on
the number of months during FY 2008 (relative to 12 months) during which
Employee was employed by the Company;
(ii)
A
lump
sum payment equal to two times Employee’s Base Salary in effect immediately
prior to the Effective Date,
plus
two
times the amount of Employee’s annual target bonus amount Employee was eligible
to earn under the Bonus Plan as in effect immediately prior to the Effective
Date;
(iii)
A
lump
sum payment in an amount equal to two times the annual contribution made by
the
Company for Employee’s participation in the Company’s medical, dental and vision
benefits program.
(iv)
Outplacement
services, provided by the Company, for one year or until other employment is
secured, whichever comes first.
Unless
otherwise permitted by Section 409A of the Internal Revenue Code of 1986, as
amended (the “Internal Revenue Code”), with regard to any payment or benefit
under this Section 12 which is nonqualified deferred compensation covered by
Section 409A of the Internal Revenue Code, no such payment or benefit shall
be
provided to Employee pursuant to this Section if the Release attached hereto
is
not provided to the Company, without revocation thereof, no later than
forty-five (45) days after Employee’s termination date; and no payment or
benefit hereunder shall be provided to Employee prior to the Company’s receipt
of the Release and the expiration of the period of revocation provided in the
Release.
c.
In
the
event that there is a material breach by Employee of any continuing obligations
under this Agreement or the Release after termination of employment, any unpaid
amounts under this Section 12 shall be forfeited. Any payments or reimbursements
under this Section 12 shall not be deemed the continuation of Employee’s
employment for any purpose. Except as specifically enumerated in the Release,
the Company’s payment obligations under this Section 12 will not negate or
reduce (i) any amounts otherwise due but not yet paid to Employee by the
Company, or (ii) any other amounts payable to Employee outside this Agreement,
or (iii) those benefits owed under any other plan or agreement covering Employee
which shall be governed by the terms of such plan or agreement.
d.
Anything
in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined as provided below that any payment or
distribution by the Company to or for the benefit of Employee (whether paid
or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (a “Payment”) would be subject to the excise tax imposed by Section
4999 of the Internal Revenue Code or any interest or penalties are incurred
by
Employee with respect to such excise tax (collectively
referred
to as the “Excise Tax”), then Employee shall be entitled to receive an
additional payment (a “Gross-Up Payment”) in an amount such that after Employee
pays all taxes (including any interest or penalties imposed with respect
to such
taxes), including, without limitation, any Excise, income or other tax (and
any
interest and penalties imposed with respect thereto), Employee retains an
amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(i)
All
determinations required to be made under this Section 12.c., including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be used in arriving at such determination, shall be
made
by the tax department of an independent public accounting firm (the “Accounting
Firm”) which shall be engaged by the Company prior to the time of the first
Payment to Employee. The Accounting Firm selected shall not be serving as
accountant or auditor for the individual, entity or group effecting the Change
in Control. The Accounting Firm shall prepare and provide detailed supporting
calculations both to the Company and Employee within fifteen (15) business
days
of the later of (i) the Accounting Firm’s engagement to make the required
calculations or (ii) the date the Accounting Firm obtains all information
needed to make the required calculation. Any determination by the Accounting
Firm shall be binding upon the Company and Employee. All fees and expenses
of
the Accounting Firm shall be borne solely by the Company.
(ii)
Any
Gross-Up Payment, as determined pursuant to this Section 12.c., shall be paid
by
the Company to Employee within five (5) days of the receipt of the Accounting
Firm’s determination if the Payment is then required to satisfy an assessment or
other current demand for payment made of Employee by federal or state taxing
authorities. Gross-Up Payments due at a later date shall be paid to Employee
no
later than fourteen (14) days prior to the date that Employee’s federal or state
payment is due. If required by law, the Company shall treat all or any portion
of the Gross-Up Payment as being subject to income tax withholding for federal
or state tax purposes. Notwithstanding the foregoing, all Gross-Up Payments
shall in any event be made no later than the calendar year following the
calendar year in which Employee remits the Excise Tax. Amounts determined by
the
Company to be subject to federal or state tax withholding will not be paid
directly to Employee but shall be timely paid to the respective taxing
authority.
(iii)
As
a
result of the uncertainty in the application of Section 4999 of the Internal
Revenue Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that Employee hereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company (or any successor or assign)
to or for the benefit of Employee and in no event later than the end of the
calendar year next following the taxable year in which Employee remits the
Excise Tax. Conversely, if it is later determined that the actual required
Gross-Up Payment was less than the amount paid to Employee, Employee shall
refund the excess portion to the Company but only to the extent that Employee
has not yet paid the excess amount to the taxing authorities or is able to
obtain a refund from the respective taxing authorities of amounts previously
paid. The Company may pursue at its own expense the refund on behalf of
Employee, and, if requested by the Company, Employee shall reasonably cooperate
in such refund effort.
13.
Publicity;
No Disparaging Statement
.
Except
as
otherwise provided in Section 14 hereof, Employee and the Company covenant
and
agree that they shall not engage in any communi-cations to persons outside
the
Company which shall disparage one another or interfere with their existing
or
prospective business relationships.
14.
Confidentiality
and Legal Process
.
Employee
agrees to keep the proprietary terms, of this Agreement confidential and to
refrain from disclosing any information concerning this Agreement to any one
other than Employee’s immediate family and personal agents or advisors.
Notwithstanding the foregoing, nothing in this Agreement is intended to prohibit
Employee or the Company from performing any duty or obligation that shall arise
as a matter of law. Specifically, Employee and the Company shall continue to
be
under a duty to truthfully respond to any legal and valid subpoena or other
legal process. This Agreement is not intended in any way to proscribe Employee’s
or the Company’s right and ability to provide information to any federal, state
or local agency in response or adherence to the lawful exercise of such agency’s
authority.
15.
Business
Protection Provision Definitions
.
a.
Preamble
.
As a
material inducement to the Company to enter into this Agreement, and in
recognition of the valuable experience, knowledge and proprietary information
Employee
has gained or will gain while
employed, Employee agrees to abide by and adhere to the business protection
provisions in Sections 15, 16, 17 and 18 herein.
b.
Definitions
.
For
purposes of Sections 15, 16, 17, 18, 19 and 20 herein:
(i)
“Competitive
Position” shall mean any employment, consulting, advisory, directorship, agency,
promotional or independent contractor arrangement between Employee and (x)
any
person or Entity engaged wholly or in material part in the business in which
the
Company is engaged (i.e., the deep discount consumable basics retail business),
including but not limited to such other similar businesses as Wal-Mart, Target,
K-Mart, Walgreen’s, Rite-Aid, CVS, Family Dollar Stores, Fred’s, the 99 Cents
Stores, Dollar Tree Stores,
Costco,
BJ’s Wholesale Club, Longs Drug Stores, Casey’s General Stores Inc, and Pantry
Inc
.
or (y)
any person or Entity then attempting or planning to enter the deep discount
consumable basics retail business, whereby Employee is required to perform
services on behalf of or for the benefit of such person or Entity which are
substantially similar to the services Employee provided or directed at any
time
while employed by the Company or any of its affiliates.
(ii)
“Confidential
Information” shall mean the proprietary or confidential data, information,
documents or materials (whether oral, written, electronic or otherwise)
belonging to or pertaining to the Company, other than “Trade Secrets” (as
defined below), which is of tangible or intangible value to the Company and
the
details of which are not generally known to the competitors of the Company.
Confidential Information shall also include any items marked “CONFIDENTIAL” or
some similar designation or which are otherwise identified as being
confidential.
(iii)
“Entity”
or “Entities” shall mean any business, individual, partnership, joint venture,
agency, governmental agency, body or subdivision, association, firm,
corporation, limited liability company or other entity of any kind.
(iv)
“Restricted
Period” shall mean two (2) years following Employee’s termination
date.
(v)
“Territory”
shall include those states in which the Company maintains stores at Employee’s
termination date or those states in which the Company has specific and
demonstrable plans to open stores within six months of Employee’s termination
date.
(vi)
“Trade
Secrets” shall mean information or data of or about the Company, including, but
not limited to, technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans or lists of actual or potential
customers or suppliers that: (A) derives economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its disclosure or
use; (B) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy; and (C) any other information which is defined as
a
“trade secret” under applicable law.
(vii)
“Work
Product” shall mean all tangible work product, property, data, documentation,
“know-how,” concepts or plans, inventions, improvements, techniques and
processes relating to the Company that were conceived, discovered, created,
written, revised or developed by Employee while employed by the
Company.
16.
Nondisclosure:
Ownership of Proprietary Property
.
a.
In
recognition of the Company’s need to protect its legitimate business interests,
Employee hereby covenants and agrees that, for the Term and thereafter (as
described below), Employee shall regard and treat Trade Secrets and Confidential
Information as strictly confidential and wholly-owned by the Company and shall
not, for any reason, in any fashion, either directly or indirectly, use, sell,
lend, lease, distribute, license, give, transfer, assign, show, disclose,
disseminate, reproduce, copy, misappropriate or otherwise communicate any Trade
Secrets or Confidential Information to any person or Entity for any purpose
other than in accordance with Employee’s duties under this Agreement or as
required by applicable law. This provision shall apply to each item
constituting a Trade Secret at all times it remains a “trade secret” under
applicable law and shall apply to any Confidential Information, during
employment and for the Restricted Period thereafter.
b.
Employee
shall exercise best efforts to ensure the continued confidentiality of all
Trade
Secrets and Confidential Information and shall immediately notify the Company
of
any unauthorized disclosure or use of any Trade Secrets or Confidential
Information of which Employee becomes aware. Employee shall assist the Company,
to the extent reasonably requested, in the protection or procurement of any
intellectual property protection or other rights in any of the Trade Secrets
or
Confidential Information.
c.
All
Work
Product shall be owned exclusively by the Company. To the greatest extent
possible, any Work Product shall be deemed to be “work made for hire” (as
defined in the Copyright Act, 17 U.S.C.A. § 101 et seq., as amended), and
Employee hereby unconditionally and irrevocably transfers and assigns to the
Company all right, title and interest Employee currently has or may have by
operation of law or otherwise in or to any Work Product, including, without
limitation, all patents, copyrights, trademarks (and the goodwill associated
therewith), trade secrets, service marks (and the goodwill associated therewith)
and other intellectual property rights. Employee agrees to execute and deliver
to the Company any transfers, assignments, documents or other instruments which
the Company may deem necessary or appropriate, from time to time, to protect
the
rights granted herein or to vest complete title and ownership of any and all
Work Product, and all associated intellectual property and other rights therein,
exclusively in the Company.
17.
Non-Interference
with Employees
.
Through
employment and thereafter through the Restricted Period, Employee will not,
either directly or indirectly, alone or in conjunction with any other person
or
Entity: actively recruit, solicit, attempt to solicit, induce or attempt to
induce any person who is an exempt employee of the Company or any of its
subsidiaries or affiliates to leave or cease such employment for any reason
whatsoever;
18.
Non-Interference
with Business Relationships
.
a.
Employee
acknowledges that, in the course of employment, Employee will learn about
Company’s business, services, materials, programs and products and the manner in
which they are developed, marketed, serviced and provided. Employee knows and
acknowledges that the Company has invested considerable time and money in
developing its product sales and real estate development programs and
relationships, vendor and other service provider relationships and agreements,
store layouts and fixtures, and marketing techniques and that those things
are
unique and original. Employee further acknowledges that the Company has a strong
business reason to keep secret information relating to Company’s business
concepts, ideas, programs, plans and processes, so as not to aid Company’s
competitors. Accordingly, Employee acknowledges and agrees that the protection
outlined in (b) below is necessary and reasonable.
b.
During
the Restricted Period, Employee will not, on Employee’s own behalf or on behalf
of any other person or Entity, solicit, contact, call upon, or communicate
with
any person or entity or any representative of any person or entity who has
a
business relationship with Company and with whom Employee had contact while
employed, if such contact or
communication
would likely interfere with Company’s business relationships or result in an
unfair competitive advantage over Company.
19.
Agreement
Not to Work in Competitive Position
.
Employee
covenants and agrees not to accept, obtain or work in a Competitive Position
within the Territory for the Restricted Period.
20.
Acknowledgements
Regarding Sections 15 - 19.
a.
Employee
and Company expressly covenant and agree that the scope, territorial, time
and
other restrictions contained in Sections 15 through 19 of this Agreement
constitute the most reasonable and equitable restrictions possible to protect
the business interests of the Company given: (i) the business of the Company;
(ii) the competitive nature of the Company’s industry; and (iii) that Employee’s
skills are such that Employee could easily find alternative, commensurate
employment or consulting work in Employee’s field which would not violate any of
the provisions of this Agreement.
b.
Employee
acknowledges that the compensation and benefits described in Sections 6 and
12
are also in consideration of his/her covenants and agreements contained in
Sections 15 through 19 hereof.
c.
Employee
acknowledges and agrees that a breach by Employee of the obligations set forth
in Sections 15 through 19 will likely cause Company irreparable injury and
that,
in such event, the Company shall be entitled to injunctive relief in addition
to
such other and further relief as may be proper.
d.
The
parties agree that if, at any time, a court of competent jurisdiction determines
that any of the provisions of Section 15 through 19 are unreasonable under
Tennessee law as to time or area or both, the Company shall be entitled to
enforce this Agreement for such period of time or within such area as may be
determined reasonable by such court.
21.
Return
of Materials
.
Upon
Employee’s termination, Employee shall return to the Company all written,
electronic, recorded or graphic materials of any kind belonging or relating
to
the Company or its affiliates, including any originals, copies and abstracts
in
Employee’s possession or control.
22.
General
Provisions
.
a.
Amendment
.
This
Agreement may be amended or modified only by a writing signed by both of the
parties hereto.
b.
Binding
Agreement
.
This
Agreement shall inure to the benefit of and be binding upon Employee, his/her
heirs and personal representatives, and the Company and its successors and
assigns.
c.
Waiver
Of Breach; Specific Performance
.
The
waiver of a breach of any provision of this Agreement shall not operate or
be
construed as a waiver of any other breach. Each of the parties to this Agreement
will be entitled to enforce this Agreement, specifically, to recover damages
by
reason of any breach of this Agreement, and to exercise all other rights
existing in that party’s favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions
of
this Agreement and that any party may apply to any court of law or equity of
competent jurisdiction for specific performance or injunctive relief to enforce
or prevent any violations of the provisions of this Agreement.
d.
Unsecured
General Creditor
.
The
Company shall neither reserve nor speci-fically set aside funds for the payment
of its obligations under this Agreement, and such obligations shall be paid
solely from the general assets of the Company.
e.
No
Effect On Other Arrangements
.
It is
expressly understood and agreed that the payments made in accordance with this
Agreement are in addition to any other benefits or compensation to which
Employee may be entitled or for which Employee may be eligible.
f.
Tax
Withholding
.
There
shall be deducted from each payment under this Agreement the amount of any
tax
required by any govern-mental authority to be withheld and paid over by the
Company to such governmental authority for the account of Employee.
g.
Notices
.
(i)
All
notices and all other communications provided for herein shall be in writing
and
delivered personally to the other designated party, or mailed by certified
or
registered mail, return receipt requested, or delivered by a recognized national
overnight courier service, or sent by facsimile, as follows:
If
to
Company to:
Dollar
General Corporation
Attn:
General Counsel
100
Mission Ridge
Goodlettsville,
TN 37072-2171
Facsimile:
(615)855-5180
If
to
Employee to:
(Last
address of Employee
known
to
Company unless
otherwise
directed in writing by Employee)
(ii)
All
notices sent under this Agreement shall be deemed given twenty-four (24) hours
after sent by facsimile or courier, seventy-two (72) hours after sent by
certified or registered mail and when delivered if by personal
delivery.
(iii)
Either
party hereto may change the address to which notice is to be sent hereunder
by
written notice to the other party in accordance with the provisions of this
Section.
h.
Governing
Law
.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Tennessee (without giving effect to conflict of laws).
i.
Entire
Agreement
.
This
Agreement contains the full and complete understanding of the parties hereto
with respect to the subject matter contained herein and, unless specifically
provided herein, this Agreement supersedes and replaces any prior agreement,
either oral or written, which Employee may have with Company that relates
generally to the same subject matter.
j.
Assignment
.
This
Agreement may not be assigned by Employee, and any attempted assignment shall
be
null and void and of no force or effect.
k.
Severability
.
If any
one or more of the terms, provisions, covenants or restrictions of this
Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect, and to that end the provisions hereof shall be deemed
severable.
l.
Section
Headings
.
The
Section headings set forth herein are for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement
whatsoever.
m.
Voluntary
Agreement
.
Employee and Company represent and agree that each has reviewed all aspects
of
this Agreement, has carefully read and fully understands all provisions of
this
Agreement, and is voluntarily entering into this Agreement. Each party
represents and agrees that such party has had the opportunity to review any
and
all aspects of this Agreement with legal, tax or other adviser(s) of such
party’s choice before executing this Agreement.
n.
Nonqualified
Deferred Compensation Omnibus Provision
.
It is
intended that any payment or benefit which is provided pursuant to or in
connection with this Agreement which is considered to be nonqualified deferred
compensation subject to Section 409A of the Internal
Revenue
Code shall be paid and provided in a manner, and at such time and in such
form,
as complies with the applicable requirements of Section 409A of the Internal
Revenue Code to avoid the unfavorable tax consequences provided therein for
non-compliance. In connection with effecting such compliance with Section
409A
of the Internal Revenue Code, the following shall apply:
(i)
Notwithstanding
any other provision of this Agreement, the Company is authorized to amend this
Agreement, to void or amend any election made by Employee under this Agreement
and/or to delay the payment of any monies and/or provision of any benefits
in
such manner as may be determined by it to be necessary or appropriate to comply,
or to evidence or further evidence required compliance, with Section 409A of
the
Internal Revenue Code (including any transition or grandfather rules
thereunder).
(ii)
Neither
Employee nor the Company shall take any action to accelerate or delay the
payment of any monies and/or provision of any benefits in any manner which
would
not be in compliance with Section 409A of the Internal Revenue Code (including
any transition or grandfather rules thereunder). Notwithstanding the
foregoing:
(A)
Payment
may be delayed for a reasonable period in the event the payment is not
administratively practical due to events beyond the recipient’s control such as
where the recipient is not competent to receive the benefit payment, there
is a
dispute as to amount due or the proper recipient of such benefit payment,
additional time is needed to calculate the amount payable, or the payment would
jeopardize the solvency of the Company.
(B)
Payments
shall be delayed in the following circumstances: (1) where the Company
reasonably anticipates that the payment will violate the terms of a loan
agreement to which the Company is a party and that the violation would cause
material harm to the Company; or (2) where the Company reasonably
anticipates that the payment will violate Federal securities laws or other
applicable laws; provided that any payment delayed by operation of this clause
(B) will be made at the earliest date at which the Company reasonably
anticipates that the payment will not be limited or cause the violations
described.
(iii)
If
Employee is a specified employee of a publicly traded corporation
as
required by Section 409A(a)(2)(B)(i) of
the
Internal Revenue Code,
a
ny
payment or provision of benefits in connection with a separation from service
payment event (as
determined
for purposes of
Section
409A of
the
Internal Revenue Code) shall not be made until six months after Employee’s
separation from service
(the
“409A
Deferral Period”). In the event such payments are otherwise due to be made in
installments or periodically during the 409A Deferral Period, the payments
which
would otherwise have been made in the 409A Deferral Period shall be accumulated
and paid in a lump sum as soon as the 409A Deferral Period ends, and the
balance
of the payments shall be made as otherwise scheduled. In the event benefits
are
required to be deferred, any such benefit may be provided during the 409A
Deferral Period at Employee’s expense, with Employee having a right to
reimbursement from the Company once the 409A Deferral Period ends, and the
balance of the benefits shall be provided as otherwise
scheduled.
(iv)
If
a
Change in Control occurs but the Change in Control does not constitute a change
in ownership of the Company or in the ownership of a substantial portion of
the
assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Internal
Revenue Code, then payment of any amount or provision of any benefit under
this
Agreement which is considered to be nonqualified deferred compensation subject
to Section 409A of the Internal Revenue Code shall be deferred until another
permissible payment event contained in Section 409A of the Internal Revenue
Code
occurs (e.g., death, disability, separation from service from the Company and
its affiliated companies as defined for purposes of Section 409A of the Internal
Revenue Code), including any deferral of payment or provision of benefits for
the
409A
Deferral Period
as
provided above
.
IN
WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute this Agreement to be effective as of the
Effective Date.
DOLLAR
GENERAL
CORPORATION
By:
Date:_______________
Its:
“EMPLOYEE”
David
L.
Beré
Date:________________
Witnessed
By:
Addendum
to Employment
Agreement
with David L. Beré
RELEASE
AGREEMENT
THIS
RELEASE (“Release”) is made and entered into by and between _________________
(“Employee”) and
DOLLAR
GENERAL CORPORATION
,
and its
successor or assigns (“Company”).
WHEREAS,
Employee and Company have agreed that Employee’s employment with Dollar General
Corporation shall terminate on ___________________;
WHEREAS,
Employee and the Company have previously entered into that certain Employment
Agreement, effective _____________________ (“Agreement”), in which the form of
this Release is incorporated by reference;
WHEREAS,
Employee and Company desire to delineate their respective rights, duties and
obligations attendant to such termination and desire to reach an accord and
satisfaction of all claims arising from Employee’s employment, and termination
of employment, with appropriate releases, in accordance with the
Agreement;
WHEREAS,
the Company desires to compensate Employee in accordance with the Agreement
for
service Employee has provided and/or will provide for the Company;
NOW,
THEREFORE, in consideration of the premises and the agreements of the parties
set forth in this Release, and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby covenant and agree as follows:
1.
Claims
Released Under This Agreement
.
In
exchange for receiving the benefits described in Section 6 and Section 12 of
the
Agreement, Employee hereby voluntarily and irrevocably waives, releases,
dismisses with prejudice, and withdraws all claims, complaints, suits or demands
of any kind whatsoever (whether known or unknown) which Employee ever had,
may
have, or now has against Company and other current or former subsidiaries or
affiliates of the Company and their past, present and future officers,
directors, employees, agents, insurers and attorneys (collectively, the
“Releasees”), arising from or relating to (directly or indirectly) Employee’s
employment or the termination of employment or other events that have occurred
as of the date of execution of this Agreement, including but not limited
to:
a.
claims
for violations of Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Fair Labor Standards Act, the Civil Rights
Act of 1991, the Americans With Disabilities Act, the Equal Pay Act, the Family
and Medical Leave Act, 42 U.S.C. § 1981, the Sarbanes Oxley Act of 2002,
the National Labor Relations Act, the Labor Management Relations Act, Executive
Order 11246, Executive Order 11141, the Rehabilitation Act of 1973, or the
Employee Retirement Income Security Act;
b.
claims
for violations of any other federal or state statute or regulation or local
ordinance;
c.
claims
for lost or unpaid wages, compensation, or benefits, defamation, intentional
or
negligent infliction of emotional distress, assault, battery, wrongful or
constructive discharge, negligent hiring, retention or supervision, fraud,
misrepresentation, conversion, tortious interference, breach of contract, or
breach of fiduciary duty;
d.
claims
to
benefits under any bonus, severance, workforce reduction, early retirement,
outplacement, or any other similar type plan sponsored by the Company (except
for those benefits owed under any other plan or agreement covering Employee
which shall be governed by the terms of such plan or agreement); or
e.
any
other
claims under state law arising in tort or contract.
2.
Claims
Not Released Under This Agreement
.
In
signing this Release, Employee is not releasing any claims that may arise under
the terms of this Release or which may arise out of events occurring after
the
date Employee executes this Release.
Employee
also is not releasing claims to benefits that Employee is already entitled
to
receive under any other plan or agreement covering Employee which shall be
governed by the terms of such plan or agreement. However, Employee understands
and acknowledges that nothing herein is intended to or shall be construed to
require the Company to institute or continue in effect any particular plan
or
benefit sponsored by the Company, and the Company hereby reserves the right
to
amend or terminate any of its benefit programs at any time in accordance with
the procedures set forth in such plans.
Nothing
in this Release shall prohibit Employee from engaging in activities required
or
protected under applicable law or from communicating, either voluntarily or
otherwise, with any governmental agency concerning any potential violation
of
the law.
3.
No
Assignment of Claim
.
Employee
represents that Employee has not assigned or transferred, or purported to assign
or transfer, any claims or any portion thereof or interest therein to any party
prior to the date of this Release.
4.
Compensation
.
In
accordance with the Agreement, the Company agrees to pay Employee or, if
Employee becomes eligible for payments under Section 6 and Section 12 but dies
before receipt thereof, Employee’s spouse or estate, as the case may be, the
amount provided in Section 6 and Section 12 of the Agreement.
5.
Publicity;
No Disparaging Statement
.
Except
as
otherwise provided in Section 14 of the Agreement, Section 2 of this Release,
and as privileged by law, Employee and the Company covenant and agree that
they
shall not engage in any communi-cations with persons outside the Company which
shall disparage one another or interfere with their existing or prospective
business relationships.
6.
No
Admission Of Liability
.
This
Release shall not in any way be construed as an admission by the Company or
Employee of any improper actions or liability whatsoever as to one another,
and
each specifically disclaims any liability to or improper actions against the
other or any other person.
7.
Voluntary
Execution
.
Employee
warrants, represents and agrees that Employee has been encouraged in writing
to
seek advice regarding this Release from an attorney and tax advisor prior to
signing it; that this Release represents written notice to do so; that Employee
has been given the opportunity and sufficient time to seek such advice; and
that
Employee fully understands the meaning and contents of this Release. Employee
further represents and warrants that Employee was not coerced, threatened or
otherwise forced to sign this Release, and that Employee’s signature appearing
hereinafter is voluntary and genuine. EMPLOYEE UNDERSTANDS THAT EMPLOYEE MAY
TAKE UP TO TWENTY-ONE (21) DAYS TO CONSIDER WHETHER TO ENTER INTO THIS
RELEASE.
8.
Ability
to Revoke Agreement
.
EMPLOYEE
UNDERSTANDS THAT THIS RELEASE MAY BE REVOKED BY EMPLOYEE BY NOTIFYING THE
COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN (7) DAYS OF EMPLOYEE’S
EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE UNTIL THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. EMPLOYEE UNDERSTANDS THAT UPON THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON
EMPLOYEE AND EMPLOYEE’S HEIRS, ADMINISTRATORS,
REPRESENTATIVES,
EXECUTORS, SUCCESSORS AND ASSIGNS AND WILL BE
IRREVOCABLE.
Acknowledged
and Agreed To:
“COMPANY”
DOLLAR
GENERAL
CORPORATION
By:
/s/
Susan Lanigan
Its:
EVP-HR
I
UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE.
I
UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE.
“EMPLOYEE”
/s/
David L. Beré
David
L.
Beré
WITNESSED
BY:
/s/
J.J.
Stine
J.J.
Stine
Date
July
5, 2007
Appendix
A
If
Adjusted EBITDA
1
for fiscal year is:
|
Then
Executive will be entitled to receive:
|
Equal
to or greater than $630 million, but less than $700
million
|
Threshold
Bonus
|
Equal
to or greater than $700 million, but less than $770
million
|
Target
Bonus
|
Equal
to or greater than $770 million
|
Maximum
Bonus
|
1
Adjusted
EBITDA
will be reduced by expense of all bonus payments to be paid in respect
of such
fiscal year to all employees. In addition, the Board of
Directors
will make a good faith determination of the adjustments to the EBITDA targets
for Alpha costs and other one time expenses after consulting with the
CEO
and
CFO.
A-1