GUARANTEE
EXHIBIT
4.3
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”),
Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent, Xxxxxx 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
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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,
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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.
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(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
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(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.
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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
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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
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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
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 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]
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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
Guarantor
By:
/s/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DG
RETAIL, LLC, as
Guarantor
By: /s/
Xxxx
Xxxxx
|
Dollar
|
General
Corporation
|
|
as sole member
|
Xxxx Xxxxx
Treasurer
DOLGENCORP,
INC., as
Guarantor
By:
/s/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DOLGENCORP
OF NEW
YORK, INC., as
Guarantor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC., as Guarantor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Treasurer
S
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Guarantee
Signature Pages
DG
TRANSPORTATION,
INC., as Guarantor
By:
/s/ Xxxx
Xxxxx
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
DG
LOGISTICS, LLC, as
Guarantor
By:
/s/
Xxxx
Xxxxx
DG
Transportation,
Inc. as Manager
Xxxx
Xxxxx
Treasurer
DGC
PROPERTIES LLC,
as Guarantor
|
By: /s/Xxxx Xxxxx
|
Dolgencorp, Inc., as sole member
Xxxx Xxxxx
Xxxx Xxxxx
Treasurer
SOUTH
BOSTON
HOLDINGS, INC., as Guarantor
|
By:
|
/s/
Xxxx Xxxxx
|
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Treasurer
|
SUN-DOLLAR,
L.P., as
Guarantor
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
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Guarantee
Signature Pages
SOUTH
BOSTON
FF&E, LLC, as Guarantor
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 Guarantor
By:
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
Treasurer
DOLLAR
GENERAL
INVESTMENT, INC., as
Guarantor
By:
/s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title:
Treasurer
DOLLAR
GENERAL
MERCHANDISING,
INC.,
as Guarantor
By:
/s/ Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Treasurer
S
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Guarantee
Signature Pages
DOLLAR
GENERAL
PARTNERS, as Guarantor
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
Guarantor
By:
/s/ Xxxx
Xxxxx
Dollar
General
Partners as sole member
|
By:
|
Dollar
General Corporation -
its
authorized general partner
|
Xxxx Xxxxx
Treasurer
S
-4
Guarantee
Signature Pages
CITICORP
NORTH
AMERICA, INC., as
Collateral
Agent
By: /s/
Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
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”),
Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent, Xxxxxx 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
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:
