PLEDGE AGREEMENT
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-
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”.
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(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.
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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-
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“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
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(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)
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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.
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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
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(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
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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
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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
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(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 xxx
in
any other jurisdiction; and
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(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]
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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/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DG
RETAIL, LLC, as
Pledgor
By: /s/
Xxxx
Xxxxx
|
Dollar
|
General
Corporation
|
|
as sole member
|
Xxxx Xxxxx
Treasurer
DOLGENCORP,
INC., as
Pledgor
By:
/s/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DOLGENCORP
OF NEW
YORK, INC., as
Pledgor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Pledgor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Treasurer
S
-1
Pledge
Agreement Signature Pages
DG
TRANSPORTATION,
INC., as Pledgor
By:
/s/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DG
LOGISTICS, LLC, as
Pledgor
By:
/s/
Xxxx
Xxxxx
DG
Transportation,
Inc. as Manager
Xxxx
Xxxxx
Treasurer
DGC
PROPERTIES LLC,
as Pledgor
|
By: /s/Xxxx Xxxxx
|
Dolgencorp, Inc., as sole member
Xxxx Xxxxx
Xxxx Xxxxx
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as Pledgor
|
By:
|
/s/
Xxxx Xxxxx
|
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
SUN-DOLLAR,
L.P., as
Pledgor
By:
/s/ Xxxx Xxxxx
South
Boston
Holdings, Inc. general partner
Xxxx Xxxxx
Treasurer
|
By:
|
/s/ Xxxx Xxxxx
|
Dolgencorp, Inc. limited
partner
Xxxx Xxxxx
Treasurer
S
-2
Pledge
Agreement Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Pledgor
By: Sun-Dollar,
L.P. (sole member)
By:
/s/ Xxxx Xxxxx
South Boston Holdings, Inc. - -
its
general
partner
Xxxx Xxxxx
Treasurer
DG
PROMOTIONS, INC.,
as Pledgor
By:
/s/ Xxxx Xxxxx
Name: WadeSmith
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Pledgor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Pledgor
By:
/s/ Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Treasurer
S
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Pledge Agreement
Signature Pages
DOLLAR
GENERAL
PARTNERS, as Pledgor
By:
/s/ Xxxx
Xxxxx
Dollar
General Corporation
-
its
authorized
general
partner
Xxxx Xxxxx
Treasurer
/s/ Xxxx Xxxxx
By: Dollar
General Merchandising, Inc. —
its
general partner
Xxxx
Xxxxx
Treasurer
DGC
PROPERTIES OF
KENTUCKY LLC, as
Pledgor
By:
/s/ Xxxx
Xxxxx
Dollar
General
Partners as sole member
|
By:
|
Dollar
General Corporation -
its
authorized general partner
|
Xxxx Xxxxx
Treasurer
S
-4
Pledge
Agreement Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By: /s/
Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
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-
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
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(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.
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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.
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