EXHIBIT 10.4
SUBSIDIARY GUARANTEE
THIS SUBSIDIARY GUARANTEE (as amended from time to time, this
"Subsidiary Guarantee") is made as of the 11th day of June, 1999 by DOLGENCORP,
INC., a Kentucky corporation ("Dolgencorp"), DOLGENCORP OF TEXAS, INC., a
Kentucky corporation ("Dolgencorp of Texas"), DADE LEASE MANAGEMENT, INC., a
Delaware corporation ("Dade"), DOLLAR GENERAL FINANCIAL, INC., a Tennessee
corporation ("Dollar Financial"), and DOLLAR GENERAL PARTNERS, a Kentucky
general partnership ("Dollar Partners"; Dolgencorp, Dolgencorp of Texas, Dade,
Dollar Financial and Dollar Partners are collectively referred to as
"Guarantors" and individually as a "Guarantor") in favor of the Agent, for the
ratable benefit of the Funding Parties, under the Master Agreement referred to
below;
WITNESSETH:
WHEREAS, Dollar General Corporation, a Kentucky corporation
("Dollar"), certain subsidiaries of Dollar, Atlantic Financial Group, Ltd.
("Lessor"), Three Pillars Funding Corporation (the "Lender"), SunTrust Bank,
Nashville, N.A. as agent (the "Agent"), First Union National Bank, as
Syndication Agent, Bank of America National Trust and Savings Bank, as
Documentation Agent, The First National Bank of Chicago and Wachovia Bank, N.A.,
as Co-Agents, the various financial institutions parties thereto, as Liquidity
Banks, and SunTrust Equitable Securities Corporation, as Administrator have
entered into that certain Master Agreement dated as of June 11, 1999 (as the
same may have been or may hereafter be amended or supplemented from time to
time, the "Master Agreement"), providing, subject to the terms and conditions
thereof; for extensions of credit to be made by the Funding Parties to Dollar;
WHEREAS, it is a requirement of the Master Agreement that each
Guarantor shall execute and deliver this Subsidiary Guarantee whereby each
Guarantor shall guarantee the payment when due of all obligations that shall be
at any time payable by Dollar under the Master Agreement and the other Operative
Documents; and
WHEREAS, in consideration of the financial and other support that
Dollar provided, and such financial and other support as Dollar may in the
future provide, to each Guarantor, each Guarantor is willing to guarantee the
obligations under the Master Agreement and the other Operative Documents.
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Master Agreement and not
otherwise defined herein have, as used herein the respective meanings provided
for therein.
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SECTION 2. Representations and Warranties. Each Guarantor represents
and warrants (which representations and warranties shall be deemed to have been
renewed upon each Funding under the Master Agreement) that:
(a) It (i) is a corporation or, in the case of Dallas Partners, a
general partnership, duly organized or formed, validly existing and in good
standing under the laws of its jurisdiction of organization or formation; (ii)
has all requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted, and (iii) is qualified
to do business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure so to
qualify would have a Materially Adverse Effect.
(b) It has all necessary power and authority to execute, deliver and
perform its obligations under this Subsidiary Guarantee; the execution, delivery
and performance of this Subsidiary Guarantee have been duly authorized by all
necessary organizational action; and this Subsidiary Guarantee has been duly and
validly executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms.
(c) Neither the execution and delivery by it of this Subsidiary
Guarantee nor compliance with the terms and provisions hereof will conflict with
or result in a breach of, or require any consent under, its organizational
documents or any material applicable law or regulation or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
Material Contractual Obligation to which it is a party or by which it is bound
or to which it is subject, or constitute a default under any such Material
Contractual Obligation, or result in the creation or imposition of any Lien upon
any of its revenues or assets pursuant to the terms of any such Material
Contractual Obligation.
SECTION 2.02. Covenants. Each Guarantor covenants that so long as any
Funding Party has any Commitment outstanding under the Master Agreement or any
amount payable under the Operative Documents shall remain unpaid, that it will,
and, if necessary, will enable Dollar to fully comply with those covenants and
agreements set forth in the Master Agreement (including, without limitation,
Section 5 thereof).
SECTION 3. The Subsidiary Guarantee. Each Guarantor, jointly and
severally, hereby unconditionally guarantees, the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the full and
punctual payment of all amounts payable by Dollar under the Master Agreement,
the Guaranty Agreement and the other Operative Documents (all of the foregoing,
including without limitation, interest accruing or what would have accrued after
the filing of a petition in bankruptcy or other insolvency proceeding, being
referred to collectively as the "Guaranteed Obligations"). Upon failure by
Dollar to pay punctually any such amount, each Guarantor agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Master Agreement, the Guaranty Agreement or the relevant
Operative Document, as the case may be. Each Guarantor acknowledges and agrees
that this is a guarantee of payment when due, and not of collection, and that
this Subsidiary Guarantee may be enforced up to the full amount of the
Guaranteed Obligations without proceeding against Dollar, any other Guarantor,
any security for the Guaranteed Obligations, or against any other Person that
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may have liability on all or any portion of the Guaranteed Obligations. Each
Guarantor's obligations under this Subsidiary Guarantee and the obligations of
any other Subsidiary Guarantor under a Subsidiary Guarantee, are joint and
several.
SECTION 4. Subsidiary Guarantee Unconditional. The obligations of each
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Dollar under the Master
Agreement, the Guaranty Agreement or any other Operative Document, by
operation of law or otherwise or any obligation of any other guarantor
of any of the Obligations;
(ii) any modification or amendment of or supplement to the
Master Agreement, the Guaranty Agreement or any other Operative
Document;
(iii) any release, nonperfection or invalidity of any direct
or indirect security for any obligation of Dollar under the Master
Agreement, the Guaranty Agreement or any Operative Document, or any
obligations of any other guarantor of any of the Guaranteed
Obligations;
(iv) any change in the existence, structures or ownership of
Dollar or any other guarantor of any of the Guaranteed Obligations, or
any insolvency, bankruptcy, reorganization or other similar proceeding
affecting Dollar, or any other guarantor of the Guaranteed Obligations,
or its assets or any resulting release or discharge of any obligation
of Dollar, or any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff, or other rights which
any Subsidiary Guarantor may have at any time against Dollar, any other
guarantor of any of the Obligations, the Agent, the Lender, the Lessor
or any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against Dollar, or any other guarantor of any of the Guaranteed
Obligations, for any reason related to the Master Agreement, the
Guaranty Agreement, any other Operative Document, or any provision of
applicable law or regulation purporting to prohibit the payment by
Dollar or any other guarantor of the Guaranteed Obligations, of any
amount payable by Dollar under the Master Agreement, the Guaranty
Agreement or any other Operative Document; or
(vii) any other act or omission to act or delay of any kind
by Dollar, any other guarantor of the Guaranteed Obligations, the
Agent, any Lender, the Lessor or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable, discharge of any
Guarantor's obligations hereunder.
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SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. Each Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Master Agreement shall have terminated or
expired. If at any time any payment of or any amount payable by Dollar or any
other party under the Master Agreement or any other Operative Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of Dollar or otherwise, each Guarantor's
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
SECTION 6. Waiver of Notice. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein as well as any requirement
that at any time any action be taken by any Person against Dollar, any other
guarantor of the Guaranteed Obligations, or any other Person.
SECTION 7. Judgment Currency.
(a) Each Guarantor shall pay all amounts due hereunder in U.S. Dollars,
and such obligations hereunder to make payments in U.S. Dollars shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than U.S. Dollars, except to
the extent that such tender or recovery results in the effective receipt by the
Funding Parties of the full amount of U.S. Dollars expressed to be payable under
this Subsidiary Guarantee or the Operative Documents. If for the purpose of
obtaining or enforcing against any Guarantor in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than U.S. Dollars (such other currency being hereinafter referred to as the
"Judgment Currency") an amount due in U.S. Dollars, the conversion shall be
made, and the currency equivalent determined, in each case, as on the Business
Day immediately preceding the day on which the judgment is given (such Business
Day being hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange between the Judgment
Currency Conversion Date and the date of actual payment of the amounts due, each
Guarantor covenants and agrees to pay, or cause to be paid, such additional
amounts, if any (but in any event not a lesser amount), as may be necessary to
insure that the amount paid in the Judgment Currency, when converted at the rate
of exchange prevailing on the date of payment, will produce the amount of U.S.
Dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.
(c) For purposes of determining the currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of U.S. Dollars.
(d) The currency equivalent of U.S. Dollars shall mean, with respect to
any monetary amount in a currency other than U.S. Dollars, at any time for the
determination thereof, the amount of U.S. Dollars obtained by converting such
foreign currency involved in such computation into U.S. Dollars at the spot rate
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for the purchase of U.S. Dollars with the applicable foreign currency as quoted
by the Agent at approximately 11:00 a.m. (Nashville, Tennessee time) on the date
of determination thereof specified herein or, if the date of determination
thereof is not otherwise specified herein, on the date two (2) Business Days
prior to such determination.
SECTION 8. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by Dollar under the Master Agreement, the Guaranty
Agreement or any other Operative Document is stayed upon the insolvency,
bankruptcy or reorganization of Dollar, all such amounts otherwise subject to
acceleration under the terms of the Master Agreement, the Guaranty Agreement or
any other Operative Document shall nonetheless be payable by each Guarantor
hereunder forthwith on demand by the Agent.
SECTION 9. Notices. All notices, requests and other communication to
any party hereunder shall be given or made by telecopier or other writing and
telecopied, or mailed or delivered to the intended recipient at its address or
telecopier set forth on the signature pages hereof or such other address or
telecopy number as such party may hereafter specify for such purpose by notice
to the Agent in accordance with the provisions of Section 8.2. of the Master
Agreement. Except as otherwise provided in this Subsidiary Guarantee, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept such notice shall be deemed to be notice
thereof as of the time of any such in each case given or addressed as
aforesaid).
SECTION 10. No Waivers. No failure to delay by the Agent, the Lessor or
the Lender in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Subsidiary Guarantee, the
Master Agreement, the Guaranty Agreement and the other Operative Documents shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Subsidiary Guarantee is for
the benefit of the Funding Parties and their respective successors and permitted
assigns and in the event of an assignment of any amounts payable under the
Master Agreement or the other Operative Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Subsidiary Guarantee shall be binding upon each Guarantor and
its successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Subsidiary Guarantee nor
any provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Guarantors and the Agent with the consent of
the Required Liquidity Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION WAIVER OF JURY
TRIAL. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE. EACH GUARANTOR HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE AND OF ANY TENNESSEE STATE COURT SITTING IN
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NASHVILLE, TENNESSEE AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS SUBSIDIARY GUARANTEE (INCLUDING, WITHOUT LIMITATION, ANY OF THE
OTHER OPERATIVE DOCUMENTS) OR THE TRANSACTIONS CONTEMPLATED HEREBY, EACH
GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH
GUARANTOR AND EACH FUNDING PARTY ACCEPTING THIS SUBSIDIARY GUARANTEE HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTEE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by a Guarantor
hereunder shall be made without setoff or counterclaim and free and clear of and
without deduction or withholding for or on account of, any present or future
taxes, levies, imposts, duties or other charges of whatsoever nature imposed by
any government or any political or taxing authority thereof, provided, however,
that if such Guarantor is required by law to make such deduction or withholding,
such Guarantor shall forthwith pay to the Agent or any Funding Party, as
applicable, such additional amount as results in the net amount received by the
Agent or such Funding Party, as applicable, equaling the full amount which would
have been received by the Agent or such Funding Party, as applicable, had no
such deduction or withholding been made.
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IN WITNESS WHEREOF, each Guarantor has caused this Subsidiary Guarantee
to be duly executed by its authorized officers as of the day and year first
above written.
DOLGENCORP, INC.
By:___________________________________
Title:________________________________
DOLGENCORP OF TEXAS, INC.
By:___________________________________
Title:________________________________
DADE LEASE MANAGEMENT, INC.
By:___________________________________
Title:________________________________
DOLLAR GENERAL FINANCIAL, INC.
By:___________________________________
Title:________________________________
DOLLAR GENERAL PARTNERS
By:___________________________________
Title:________________________________
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ADDRESS FOR NOTICES FOR ALL
GUARANTORS:
Xxxxx Xxxxxxx
General Counsel
Dollar General Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: 502/237-3909
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ACCEPTED BY:
SUNTRUST BANK, NASHVILLE, N.A.,
as Agent
By:________________________________
Title:_____________________________
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