Contract
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:
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“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).”
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(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.
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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.
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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/
Xxxx Smith___________________
Name:
Xxxx Xxxxx
Title:
Vice President and Treasurer
U.S.
BANK NATIONAL
ASSOCIATION, as Trustee
By:
/s/
Xxxxx X. Williams______________
Name:
Xxxxx X.
Xxxxxxxx
Title:Vice
President
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Guarantors:
DG
RETAIL
LLC
By:
Dollar General
Corporation, its managing
member
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Vice President and
Treasurer
DOLGENCORP,
INC.
By:
/s/
Xxxx Xxxxx ____________________
Name:
Xxxx
Xxxxx
Title:
Treasurer
ASHLEY
RIVER
INSURANCE CO.
By: /s/
Xxxx Smith_____________________
Name: Xxxx Xxxxx
Title: Treasurer
DOLLAR
GENERAL
INVESTMENT, INC.
By:
/s/
Xxxx Smith_____________________
Name: Xxxx Xxxxx
Title: Treasurer
DOLGENCORP
OF TEXAS,
INC.
By:
/s/
Xxxx Smith______________________
Name:
Xxxx Xxxxx
Title: Treasurer
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DG
TRANSPORTATION
INC.
By:
/s/
Xxxx Xxxxx
______________________
Name: Xxxx Xxxxx
Title: Treasurer
DOLLAR
GENERAL
MERCHANDISING, INC.
f/k/a
Xxxxxxxx
Administrative Services, Inc.
By: /s/
Xxxx Smith______________________
Name: Xxxx Xxxxx
Title: Treasurer
DG
PROMOTIONS, INC.
f/k/a
Nations Title
Company, Inc.
By: /s/
Xxxx Xxxxx _____________________
Name: Xxxx Xxxxx
Title: Treasurer
DOLGENCORP
OF NEW
YORK, INC.
By:
/s/
Xxxx Smith______________________
Name: Xxxx Xxxxx
Title: Treasurer
DG
LOGISTICS
LLC
By:
DG Transportation
Inc., its sole member
By:
/s/
Xxxx Smith______________________
Name:
Xxxx Xxxxx
Title: Treasurer
8
DOLLAR
GENERAL
PARTNERS
By:
Dollar General
Corporation, a general partner
By:
/s/
Xxxx Smith______________________
Name: Xxxx Xxxxx
Title: Vice President and Treasurer
By:
Dollar General
Merchandising, Inc., a general
partner
By:
/s/
Xxxx Smith______________________
Name: Xxxx Xxxxx
Title: Treasurer
DGC
HOLDINGS,
LLC
By:
Dollar General
Corporation, its sole member
By: /s/
Xxxx Smith______________________
Name: Xxxx Xxxxx
Title: Vice President and Treasurer
DGC
PROPERTIES
LLC
By:
Dolgencorp, Inc.,
its Managing Member
By:
/s/
Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SOUTH
BOSTON
HOLDINGS, INC.
By:
/s/
Xxxx Smith_____________________________
Name: Xxxx Xxxxx
Title: Treasurer
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DGC
PROPERTIES OF KENTUCKY,
LLC
By:
Dollar General
Partners, its Sole Member
By: /s/
Xxxx Smith_________________________
Name: Xxxx Xxxxx
Title: Treasurer
By:
Dolgencorp, Inc.,
its Managing Member
By: /s/
Xxxx Smith__________________________
Name: Xxxx Xxxxx
Title:
Treasurer
DOLLAR
GENERAL GLOBAL
SOURCING LIMITED
By:
/s/
Xxxx Smith_________________________
Name:
Xxxx
Xxxxx
Title: Treasurer
SUN-DOLLAR,
L.P.
By:
South Boston
Holdings, Inc., its general partner
By:
/s/
Xxxx Smith_________________________
Name: Xxxx Xxxxx
Title: Treasurer
By:
Dolgencorp, Inc.,
its limited partner
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title: Treasurer
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