Dollar General Corporation
DOLLAR GENERAL CORP (Form: POSASR, Received: 06/27/2012 08:48:24)
QuickLinks -- Click here to rapidly navigate through this document

As filed with the Securities and Exchange Commission on June 27, 2012

Registration No. 333-165800

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549



FORM S-3
POST-EFFECTIVE AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933



DOLLAR GENERAL CORPORATION
(Exact name of registrant as specified in its charter)

Tennessee
(State or other jurisdiction of incorporation or organization)
  61-0502302
(I.R.S. Employer or Identification No.)

100 Mission Ridge
Goodlettsville, Tennessee 37072
(615) 855-4000
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)

Susan S. Lanigan, Esq.
Executive Vice President and General Counsel
100 Mission Ridge
Goodlettsville, Tennessee 37072
(615) 855-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)

With copies to:

Joseph H. Kaufman, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000

 

Robert J. DelPriore, Esq.
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
First Tennessee Building
165 Madison Avenue
Memphis, Tennessee 38103
(901) 577-8228



Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

            If the only securities being registered on this Form are to be offered pursuant to dividend or interest reinvestment plans, please check the following box.     o

            If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.     ý

            If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

            If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

            If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     ý

            If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     ý

            Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  ý   Accelerated filer  o   Non-accelerated filer  o   Smaller reporting company  o

CALCULATION OF REGISTRATION FEE

               
 
Title of Each Class of Securities
to be Registered

  Amount to be
Registered(1)(2)

  Proposed Maximum
Offering Price per
Unit(1)(2)

  Proposed Maximum
Aggregate Offering
Price(1)

  Amount of
Registration Fee(3)

 

Common Stock, par value $0.875 per share

               
 

Preferred Stock

               
 

Debt Securities(4)

               
 

Guarantees of Debt Securities(5)

               
 

Depositary Shares(6)

               
 

Stock Purchase Contracts

               
 

Warrants(7)

               
 

Units(8)

               
 

Total

               

 

(1)
Omitted pursuant to General Instructions II.E. of Form S-3. An indeterminate amount of common stock, preferred stock, depositary shares, debt securities, guarantees of debt securities, warrants, stock purchase contracts and units (the foregoing, collectively and individually, the "Securities") are being registered as may from time to time be issued at indeterminate prices (including any common stock, preferred stock or debt securities that may be issued upon conversion of, or in exchange for, common stock, debt securities or preferred stock registered hereunder or upon exercise of warrants registered hereunder, as the case may be).

(2)
Includes such indeterminate amounts of Securities as may be issued upon exercise, conversion or exchange of, or pursuant to anti-dilution adjustments with respect to, any Securities that provide for that issuance or adjustment. Also includes such indeterminate amount as may be issued in units. Separate consideration may or may not be received for any of these Securities.

(3)
In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of the registration fee. Registration fees will be paid subsequently on a "pay as you go" basis.

(4)
The debt securities may be issued at an original issue discount. The debt securities may be issued without guarantees or may be guaranteed by one or more of the registrants named below under "Table of Additional Registrants."

(5)
The debt securities may be issued without guarantees or may be guaranteed by one or more of the registrants named below under "Table of Additional Registrants." No separate consideration will be received for such guarantees. Pursuant to Rule 457(h) under the Securities Act, no registration fee is required with respect to such guarantees.

(6)
Each depositary share will be issued under a depositary agreement, will represent an interest in a fractional share or multiple shares of preferred stock and will be evidenced by a depositary receipt.

(7)
The warrants covered by this registration statement may be debt warrants, preferred stock warrants or common stock warrants.

(8)
Each unit will consist of one or more warrants, debt securities, stock purchase contracts, shares of common or preferred stock, depositary shares or any combination of such securities.

   



EXPLANTORY NOTE:

        This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 of the Registrant and the Registrant Guarantors is being filed pursuant to Instruction IV.B. solely for the purpose of adding Retail Property Investments, LLC, a majority-owned subsidiary of the Registrant, as an additional registrant whose securities are eligible to be sold hereunder and to add certain exhibits. The Table of Additional Registrants set forth below contains information regarding Retail Property Investments, LLC and reflects the name changes of existing Registrant Guarantors as follows: DG Strategic III, LLC has been renamed Dolgen Midwest, LLC, DG Strategic IV, LLC has been renamed Dolgen California, LLC, and DG Strategic V, LLC has been renamed DG eCommerce, LLC. All other information contained in the Registration Statement on Form S-3 of the Registrant and the Registrant Guarantors, including the related prospectus dated March 31, 2010, shall continue to constitute a part of the Registration Statement following the filing and effectiveness of this Post-Effective Amendment No. 1.


TABLE OF ADDITIONAL REGISTRANTS

Exact Name of Registrant as Specified
in its Charter (or Other Organizational
Document)
  State or Other
Jurisdiction of
Incorporation
or Organization
  I.R.S.
Employer
Identification
Number
  Address, Including Zip Code, and
Telephone Number, including
Area Code, of
Registrant's
Principal Executive Offices

DC Financial, LLC

  Tennessee   None   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG eCommerce, LLC

  Tennessee   27-2199273   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Logistics, LLC

  Tennessee   62-1805098   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Promotions, Inc. 

  Tennessee   62-1792083   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Retail, LLC

  Tennessee   36-4577242   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic I, LLC

  Tennessee   26-4507991   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic II, LLC

  Tennessee   26-4508076   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VI, LLC

  Tennessee   27-2199673   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VII, LLC

  Tennessee   27-2199597   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VIII, LLC

  Tennessee   27-2199514   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Transportation, Inc. 

  Tennessee   37-1517488   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Exact Name of Registrant as Specified
in its Charter (or Other Organizational
Document)
  State or Other
Jurisdiction of
Incorporation
or Organization
  I.R.S.
Employer
Identification
Number
  Address, Including Zip Code, and
Telephone Number, including
Area Code, of
Registrant's
Principal Executive Offices

Dolgen I, Inc. 

  Tennessee   26-4508189   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen II, Inc. 

  Tennessee   26-4508236   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen III, Inc. 

  Tennessee   26-4508282   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen California, LLC

  Tennessee   27-2199414   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen Midwest, LLC

  Tennessee   26-4508134   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp of New York, Inc. 

  Kentucky   62-1829863   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp of Texas, Inc. 

  Kentucky   61-1193136   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp, LLC

  Kentucky   61-0852764   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dollar General Partners

  Kentucky   61-1193137   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Retail Property Investments, LLC

  Delaware   27-3334742   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Retail Risk Solutions, LLC

  Tennessee   26-1644044   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

South Boston FF&E, LLC

  Delaware   26-0411224   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

South Boston Holdings, Inc. 

  Delaware   20-5220571   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Sun-Dollar, L.P. 

  California   95-4629930   100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Susan S. Lanigan, Esq.
Executive Vice President and General Counsel
100 Mission Ridge
Goodlettsville, Tennessee 37072
(615) 855-4000

(Name, address, including zip code, and telephone number, including area code,
of agent for service of each co-registrant)

With copies to:

Joseph H. Kaufman, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000

 

Robert J. DelPriore, Esq.
Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC
First Tennessee Building
165 Madison Avenue
Memphis, Tennessee 38103
(901) 577-8228


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 15.     Indemnification of Directors and Officers .

        Retail Property Investments, LLC is a limited liability company organized under the laws of Delaware. Section 18-108 of the Delaware Limited Liability Company Act empowers a Delaware limited liability company to indemnify and hold harmless any member or manager of the limited liability company from and against any and all claims and demands whatsoever.

        The operating agreement of Retail Property Investments, LLC provides that such entity shall indemnify the member and those authorized agents of Retail Property Investments, LLC identified in writing by the member as entitled to be indemnified under the section for all costs, losses, liabilities and damages paid or accrued by the member or any such agent in connection with the business of Retail Property Investments, LLC to the fullest extent provided or allowed by the Delaware Limited Liability Company Act and the other laws of the State of Delaware. In addition, Retail Property Investments, LLC may advance costs of defense of any proceeding to the member or such agent upon receipt by Retail Property Investments, LLC of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by Retail Property Investments, LLC.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or controlling persons of Retail Property Investments, LLC pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 16.     Exhibits .

        Please see the Exhibit Index included herewith immediately following the signature pages hereto, which is incorporated by reference.

Item 17.     Undertakings .

        A.    The undersigned registrants hereby undertake:

II-1


II-2


        B.    The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of such registrants' annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

        C.    Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrants pursuant to the foregoing provisions, the registrants have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of that registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

II-3



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, Dollar General Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  DOLLAR GENERAL CORPORATION

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this post-effective amendment to the registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Richard W. Dreiling
  Director, Chairman and Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Raj Agrawal

 

Director

*

Warren F. Bryant

 

Director

*

Michael M. Calbert

 

Director

*

Adrian Jones

 

Director

*

William C. Rhodes, III

 

Director

II-4


Signature
 
Title

 

 

 

 

 
*

David B. Rickard
  Director

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-5



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  DC FINANCIAL, LLC

  By:   Dollar General Corporation, its
Managing Member

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Richard W. Dreiling
  Director, Chairman and Chief Executive Officer of Dollar General Corporation Managing Member of Registrant (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer of Dollar General Corporation, Managing Member of Registrant (Principal Financial and Accounting Officer)

*

Raj Agrawal

 

Director of Dollar General Corporation, Managing Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, Managing Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, Managing Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, Managing Member of Registrant

II-6


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, Managing Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, Managing Member of Registrant

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-7



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  DG eCOMMERCE, LLC

  By:   Dollar General Corporation, its Sole Member

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Raj Agrawal

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-8


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-9



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  DG LOGISTICS, LLC

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer and Chief Manager of Registrant (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer of Registrant and Director of DG Transportation, Inc., Sole Member of Registrant (Principal Financial and Accounting Officer)

*

Susan S. Lanigan

 

Director of DG Transportation, Inc., the Sole Member of Registrant

*

Robert D. Ravener

 

Director of DG Transportation, Inc., the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-10



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG PROMOTIONS, INC.

 

 

By:

 

/s/ JOHN W. FERAY

John W. Feray
Senior Vice President and Chief Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ WILLIAM C. BASS

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

/s/ JOHN W. FERAY

John W. Feray

 

Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

/s/ SUSAN S. LANIGAN

Susan S. Lanigan

 

Director

/s/ DAVID M. TEHLE

David M. Tehle

 

Director

II-11



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG RETAIL, LLC

 

 

By:

 

/s/ JOHN W. FERAY

John W. Feray
Senior Vice President and Chief Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ WILLIAM C. BASS

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

/s/ JOHN W. FERAY

John W. Feray

 

Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

/s/ DAVID M. TEHLE

David M. Tehle

 

Director of DG Promotions, Inc., the Sole Member of Registrant

/s/ SUSAN S. LANIGAN

Susan S. Lanigan

 

Director of DG Promotions, Inc., the Sole Member of Registrant

II-12



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG STRATEGIC I, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Raj Agrawal

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-13


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-14



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG STRATEGIC II, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Richard W. Dreiling
  Chairman, Chief Executive Officer and Director of Dollar General Corporation, the Sole Member of Registrant (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer of Dollar General Corporation, the Sole Member of Registrant (Principal Financial and Accounting Officer)

*

Raj Agrawal

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-15


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-16



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG STRATEGIC VI, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

*

John W. Feray

 

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Raj Agrawal

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-17


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the Sole Member of Registrant

By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-18



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG STRATEGIC VII, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

John Flanigan
  Chief Executive Officer (Principal Executive
Officer)

*

John W. Feray

 

Senior Vice President and Chief Financial
Officer (Principal Financial and Accounting
Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Raj Agrawal

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the
Sole Member of Registrant

II-19


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the
Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-20



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG STRATEGIC VIII, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Richard W. Dreiling
  Chairman, Chief Executive Officer, and
Director of Dollar General Corporation, the
Sole Member of Registrant (Principal
Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial
Officer of Dollar General Corporation
(Principal Financial and Accounting Officer)

*

Raj Agrawal

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the
Sole Member of Registrant

II-21


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the
Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the
Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-22



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DG TRANSPORTATION, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012 .

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer and Director (Principal Financial and Accounting Officer)

*

Susan S. Lanigan

 

Director

*

Robert D. Ravener

 

Director

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-23



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGEN I, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012 .

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chairman and Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President and Chief Financial Officer and Director (Principal Financial and Accounting Officer)

*

Susan S. Lanigan

 

Director

*

Robert D. Ravener

 

Director

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-24



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGEN II, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President, Chief Financial Officer, and Director (Principal Financial and Accounting Officer)

*

Susan S. Lanigan

 

Director

*

Robert D. Ravener

 

Director

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-25



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGEN III, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and
Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

*

David M. Tehle

 

Executive Vice President, Chief Financial Officer and Director (Principal Financial and Accounting Officer)

*

Susan S. Lanigan

 

Director

*

Robert D. Ravener

 

Director

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-26



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGEN CALIFORNIA, LLC
    By:   Dollar General Corporation, its Sole Member

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

*

John W. Feray

 

Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Raj Agrawal

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-27


Signature
 
Title

 

 

 

 

 
*

William C. Rhodes, III
  Director of Dollar General Corporation, the Sole Member of Registrant

*

David B. Rickard

 

Director of Dollar General Corporation, the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE


 

 
    David M. Tehle
Attorney-in-Fact
   

II-28



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGEN MIDWEST, LLC
    By:   Dollar General Corporation, Sole Member of
DG Strategic I, LLC, Sole Member of
Registrant

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and
Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

 
Signature
 
Title

 

 

 

 

 

 
  *

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

 

*

David M. Tehle

 

Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

 

*

Richard W. Dreiling

 

Director of Dollar General Corporation,
the Sole Member of Registrant

 

*

Raj Agrawal

 

Director of Dollar General Corporation,
the Sole Member of Registrant

 

*

Warren F. Bryant

 

Director of Dollar General Corporation,
the Sole Member of Registrant

 

*

Michael M. Calbert

 

Director of Dollar General Corporation,
the Sole Member of Registrant

II-29


 
Signature
 
Title

 

 

 

 

 

 
  *

Adrian Jones
  Director of Dollar General Corporation,
the Sole Member of Registrant

 

*

William C. Rhodes, III

 

Director of Dollar General Corporation,
the Sole Member of Registrant

 

*

David B. Rickard

 

Director of Dollar General Corporation,
the Sole Member of Registrant

 

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-30



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGENCORP OF NEW YORK, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and
Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

 
Signature
 
Title

 

 

 

 

 

 
  *

Todd J. Vasos
  Chief Executive Officer (Principal Executive Officer)

 

*

David M. Tehle

 

Executive Vice President, Chief Financial Officer and Director (Principal Financial and Accounting Officer)

 

*

Susan S. Lanigan

 

Director

 

*

Robert D. Ravener

 

Director

 

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-31



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGENCORP OF TEXAS, INC.

 

 

By:

 

/s/ JOHN W. FERAY

John W. Feray
Senior Vice President and
Chief Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ WILLIAM C. BASS

William C. Bass
  Chief Executive Officer (Principal Executive Officer)

/s/ JOHN W. FERAY

John W. Feray

 

Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)

/s/ SUSAN S. LANIGAN

Susan S. Lanigan

 

Director

/s/ DAVID M. TEHLE

David M. Tehle

 

Director

/s/ ROBERT D. RAVENER

Robert D. Ravener

 

Director

II-32



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLGENCORP, LLC

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ TODD J. VASOS

Todd J. Vasos
  Chief Executive Officer (Principal Executive
Officer)

/s/ DAVID M. TEHLE

David M. Tehle

 

Executive Vice President and Chief Financial
Officer (Principal Financial and Accounting
Officer)

/s/ ROBERT R. STEPHENSON

Robert R. Stephenson

 

Manager

/s/ JAMES W. THORPE

James W. Thorpe

 

Manager

II-33



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    DOLLAR GENERAL PARTNERS
    By:   DG Strategic VI, LLC and DG Promotions Inc., its General Partners

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Executive Vice President and Chief
Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ WILLIAM C. BASS

William C. Bass
  Chief Executive Officer of DG Strategic VI and
DG Promotions Inc., the General Partners of
Registrant (Principal Executive Officer)

/s/ JOHN W. FERAY

John W. Feray

 

Senior Vice President and Chief Financial Officer
of DG Promotions Inc., and Chief Financial
Officer of DG Strategic VI, LLC, the General
Partners of Registrant

/s/ SUSAN S. LANIGAN

Susan S. Lanigan

 

Director of DG Promotions, Inc., one of the
General Partners of Registrant

/s/ DAVID M. TEHLE

David M. Tehle

 

Director of DG Promotions and Executive Vice
President and Chief Financial Officer of Dollar
General Corporation, the Sole Member of
DG Strategic VI, LLC

II-34



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  RETAIL PROPERTY INVESTMENTS, LLC

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Vice President and Chief Financial Officer


POWERS OF ATTORNEY

        We, the undersigned directors and officers of the registrant, do hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, our true and lawful attorneys and agents, to do any and all acts and things in our name and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable the registrant to comply with the Securities Act of 1933 and any rules, regulations and requirements of the SEC, in connection with this registration statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto, and we do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 
/s/ TODD J. VASOS

Todd J. Vasos
  President (Principal Executive Officer)

/s/ DAVID M. TEHLE

David M. Tehle

 

Vice President, Chief Financial Officer, and Manager (Principal Financial and Accounting Officer)

/s/ ANITA C. ELLIOTT

Anita C. Elliott

 

Manager

II-35


SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

  RETAIL RISK SOLUTIONS, LLC

 

By:

 

/s/ DAVID M. TEHLE


David M. Tehle
Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  President (Principal Executive Officer)

*

David M. Tehle

 

Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

*

Richard W. Dreiling

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Warren F. Bryant

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Michael M. Calbert

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

Adrian Jones

 

Director of Dollar General Corporation, the Sole Member of Registrant

*

William C. Rhodes, III

 

Director of Dollar General Corporation, the Sole Member of Registrant

II-36


Signature
 
Title

 

 

 

 

 
*

David B. Rickard
  Director of Dollar General Corporation, the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-37



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    SOUTH BOSTON FF&E, LLC

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  President (Principal Executive Officer)

*

David M. Tehle

 

Vice President and Chief Financial Officer of Registrant and Director of South Boston Holdings, Inc., the General Partner of Sun-Dollar, L.P., the Sole Member of Registrant (Principal Financial and Accounting Officer)

*

Anita C. Elliott

 

Director of South Boston Holdings, Inc., the General Partner of Sun-Dollar, L.P., the Sole Member of Registrant

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-38



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    SOUTH BOSTON HOLDINGS, INC.

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  President (Principal Executive Officer)

*

David M. Tehle

 

Vice President, Chief Financial Officer, and Director (Principal Financial and Accounting Officer)

*

Anita C. Elliott

 

Director

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-39



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Goodlettsville, State of Tennessee, on June 27, 2012.

    SUN-DOLLAR, L.P.
    By:   South Boston Holdings, Inc., its General Partner

 

 

By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Vice President and Chief Financial Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 27, 2012.

Signature
 
Title

 

 

 

 

 
*

Todd J. Vasos
  President of South Boston Holdings, Inc., the General Partner of Registrant (Principal Executive Officer)

*

David M. Tehle

 

Vice President, Chief Financial Officer and Director of South Boston Holdings, Inc. the General Partner of Registrant (Principal Financial and Accounting Officer)

*

Anita C. Elliott

 

Director

*By:

 

/s/ DAVID M. TEHLE

David M. Tehle
Attorney-in-Fact

 

 

II-40



EXHIBIT INDEX

Exhibit
Number
  Description
  1.1   Form of Underwriting Agreement for securities registered hereby*

 

2.1

 

Agreement and Plan of Merger, dated as of March 11, 2007, by and among Buck Holdings, L.P., Buck Acquisition Corp., and Dollar General Corporation (incorporated by reference to Exhibit 2.1 to Dollar General Corporation's Current Report on Form 8-K dated March 11, 2007, filed with the SEC on March 12, 2007).

 

4.1

 

Shareholders' Agreement of Dollar General Corporation, dated as of November 9, 2009 (incorporated by reference to Exhibit 4.1 to Dollar General Corporation's Current Report on Form 8-K dated November 18, 2009, filed with the SEC on November 18, 2009).

 

4.2

 

Form of Stock Certificate for Common Stock (incorporated by reference to Exhibit 4.1 to Dollar General Corporation's Registration Statement on Form S-1 filed November 9, 2009).

 

4.3

 

Form of Indenture**

 

4.4

 

Form of Charter Amendment*

 

4.5

 

Form of Warrant Agreement*

 

4.6

 

Form of Warrant Certificate*

 

4.7

 

Form of Unit Agreement*

 

4.8

 

Form of Unit*

 

4.9

 

Form of Stock Purchase Contract Agreement*

 

4.10

 

Form of Stock Purchase Contract*

 

4.11

 

Form of Depositary Agreement for Depositary Shares*

 

4.12

 

Form of Depositary Receipt*

 

5.1

 

Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC*

 

5.2

 

Opinion of Simpson Thacher & Bartlett LLP*

 

12.1

 

Computation of Ratio of Earnings to Fixed Charges, Combined Fixed Charges and Preferred Stock Dividends***

 

23.1

 

Consent of Independent Registered Public Accounting Firm**

 

23.2

 

Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included in Exhibit 5.1)

 

23.3

 

Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.2)

 

24.1

 

Powers of Attorney (included on signature pages)****

 

24.2

 

Power of Attorney of William C. Bass, dated June 26, 2012**

 

24.3

 

Power of Attorney of John W. Flanigan, dated June 26, 2012**

 

24.4

 

Power of Attorney of John W. Feray, dated June 26, 2012**

II-41


Exhibit
Number
  Description
  25.1   Form T-1 Statement of Eligibility and Qualification of the Trustee under the Trust Indenture Act of 1939 for Senior Notes**

*
To be filed, if necessary, by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.

**
Filed herewith.

***
Previously filed.

****
Previously filed except to the extent included on signature pages hereto.

II-42




QuickLinks

EXPLANTORY NOTE
TABLE OF ADDITIONAL REGISTRANTS
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
POWERS OF ATTORNEY
SIGNATURES
SIGNATURES
SIGNATURES
EXHIBIT INDEX

Exhibit 4.3

 

Dollar General Corporation

 


 

INDENTURE

 

Dated as of          , 2012

 


 

U.S. Bank National Association, a national banking association

 

as Trustee

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE

1

 

 

 

Section 1.1.

Definitions

1

Section 1.2.

Other Definitions

5

Section 1.3.

Incorporation by Reference of Trust Indenture Act

5

Section 1.4.

Rules of Construction

6

 

 

 

ARTICLE II. THE SECURITIES

6

 

 

 

Section 2.1.

Issuable in Series

6

Section 2.2.

Establishment of Terms of Series of Securities

6

Section 2.3.

Execution and Authentication

9

Section 2.4.

Registrar and Paying Agent

10

Section 2.5.

Paying Agent to Hold Money in Trust

11

Section 2.6.

Securityholder Lists

11

Section 2.7.

Transfer and Exchange

11

Section 2.8.

Mutilated, Destroyed, Lost and Stolen Securities

12

Section 2.9.

Outstanding Securities

13

Section 2.10.

Treasury Securities

13

Section 2.11.

Temporary Securities

13

Section 2.12.

Cancellation

14

Section 2.13.

Defaulted Interest

14

Section 2.14.

Special Record Dates

14

Section 2.15.

Global Securities

15

Section 2.16.

CUSIP Numbers

16

Section 2.17.

Persons Deemed Owners

16

 

 

 

ARTICLE III. REDEMPTION

17

 

 

 

Section 3.1.

Notice to Trustee

17

Section 3.2.

Selection of Securities to be Redeemed

17

Section 3.3.

Notice of Redemption

17

Section 3.4.

Effect of Notice of Redemption

18

Section 3.5.

Deposit of Redemption Price

18

Section 3.6.

Securities Redeemed in Part

19

 

 

 

ARTICLE IV. COVENANTS

19

 

 

 

Section 4.1.

Payment of Principal and Interest

19

Section 4.2.

Additional Amounts

19

Section 4.3.

Maintenance of Office or Agency

19

Section 4.4.

SEC Reports

20

Section 4.5.

Compliance Certificate

20

Section 4.6.

Taxes

21

 

i



 

Section 4.7.

Stay, Extension and Usury Laws

21

Section 4.8.

Corporate Existence

21

 

 

 

ARTICLE V. SUCCESSORS

22

 

 

 

Section 5.1.

Merger, Consolidation, or Sale of Assets

22

Section 5.2.

Successor Person Substituted

23

 

 

 

ARTICLE VI. DEFAULTS AND REMEDIES

23

 

 

 

Section 6.1.

Events of Default

23

Section 6.2.

Acceleration

24

Section 6.3.

Other Remedies

25

Section 6.4.

Waiver of Past Defaults

25

Section 6.5.

Control by Majority

25

Section 6.6.

Limitation on Suits

26

Section 6.7.

Rights of Holders of Securities to Receive Payment

26

Section 6.8.

Collection Suit by Trustee

26

Section 6.9.

Trustee May File Proofs of Claim

27

Section 6.10.

Priorities

27

Section 6.11.

Undertaking for Costs

28

 

 

 

ARTICLE VII. TRUSTEE

28

 

 

 

Section 7.1.

Duties of Trustee

28

Section 7.2.

Rights of Trustee

29

Section 7.3.

Individual Rights of Trustee

30

Section 7.4.

Trustee’s Disclaimer

30

Section 7.5.

Notice of Defaults

30

Section 7.6.

Reports by Trustee to Holders

31

Section 7.7.

Compensation and Indemnity

31

Section 7.8.

Replacement of Trustee

32

Section 7.9.

Successor Trustee by Merger, etc.

33

Section 7.10.

Eligibility; Disqualification

33

Section 7.11.

Preferential Collection of Claims Against Company

33

 

 

 

ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE

33

 

 

 

Section 8.1.

Option to Effect Legal Defeasance or Covenant Defeasance

33

Section 8.2.

Legal Defeasance and Discharge

33

Section 8.3.

Covenant Defeasance

34

Section 8.4.

Conditions to Legal or Covenant Defeasance

34

Section 8.5.

Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions

36

Section 8.6.

Repayment to Company

36

Section 8.7.

Reinstatement

37

 

ii



 

ARTICLE IX. AMENDMENTS AND WAIVERS

37

 

 

 

Section 9.1.

Without Consent of Holders

37

Section 9.2.

With Consent of Holders

38

Section 9.3.

Limitations

39

Section 9.4.

Compliance with Trust Indenture Act

40

Section 9.5.

Revocation and Effect of Consents

40

Section 9.6.

Notation on or Exchange of Securities

40

Section 9.7.

Trustee Protected

41

 

 

 

ARTICLE X. GUARANTEES

41

 

 

 

Section 10.1.

Guarantees

41

 

 

 

ARTICLE XI. SATISFACTION AND DISCHARGE

41

 

 

 

Section 11.1.

Satisfaction and Discharge

41

Section 11.2.

Application of Trust Money

42

 

 

 

ARTICLE XII. MISCELLANEOUS

42

 

 

 

Section 12.1.

Trust Indenture Act Controls

42

Section 12.2.

Notices

43

Section 12.3.

Communication by Holders with Other Holders

44

Section 12.4.

Certificate and Opinion as to Conditions Precedent

44

Section 12.5.

Statements Required in Certificate or Opinion

44

Section 12.6.

Rules by Trustee and Agents

45

Section 12.7.

Legal Holidays

45

Section 12.8.

No Recourse Against Others

45

Section 12.9.

Counterparts

45

Section 12.10.

Governing Law; Waiver of Trial by Jury

45

Section 12.11.

No Adverse Interpretation of Other Agreements

46

Section 12.12.

Successors

46

Section 12.13.

Severability

46

Section 12.14.

Table of Contents, Headings, Etc.

46

Section 12.15.

Securities in a Foreign Currency

46

 

 

 

ARTICLE XIII. SINKING FUNDS

47

 

 

 

Section 13.1.

Applicability of Article

47

Section 13.2.

Satisfaction of Sinking Fund Payments with Securities

47

Section 13.3.

Redemption of Securities for Sinking Fund

48

 

iii



 

DOLLAR GENERAL CORPORATION

 

Reconciliation and tie between Trust Indenture Act of 1939 and the Indenture

 

§ 310(a)(1)

 

7.10

(a)(2)

 

7.10

(a)(3)

 

Not Applicable

(a)(4)

 

Not Applicable

(a)(5)

 

7.10

(b)

 

7.10

(c)

 

Not Applicable

§ 311(a)

 

7.11

(b)

 

7.11

(c)

 

Not Applicable

§ 312(a)

 

2.6

(b)

 

12.3

(c)

 

12.3

§ 313(a)

 

7.6

(b)(1)

 

Not Applicable

(b)(2)

 

Not Applicable

(c)(1)

 

7.6

(c)(2)

 

7.6

(c)(3)

 

Not Applicable

(d)

 

7.6

§ 314(a)

 

4.4, 4.5

(b)

 

Not Applicable

(c)(1)

 

12.4

(c)(2)

 

12.4

(c)(3)

 

Not Applicable

(d)

 

Not Applicable

(e)

 

12.5

(f)

 

Not Applicable

§ 315(a)

 

7.1

(b)

 

7.5

(c)

 

7.1

(d)

 

7.1

(e)

 

6.11

§ 316(a)

 

2.10

(a)(1)(A)

 

6.5

(a)(1)(B)

 

6.4

(b)

 

6.7

(c)

 

2.14, 9.5(d)

§ 317(a)(1)

 

6.8

(a)(2)

 

6.9

(b)

 

2.5

§ 318(a)

 

12.1

 

Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.

 

iv


 

Indenture dated as of           , 2012 between Dollar General Corporation, a Tennessee corporation (“Company”), and U.S. Bank National Association, a national banking association, as trustee (“Trustee”).

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities (or applicable Series thereof) issued under this Indenture.

 

ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.1.             Definitions .

 

“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.

 

“Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.

 

“Agent” means any Registrar, Paying Agent or Service Agent.

 

“Authorized Newspaper” means a newspaper in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.

 

“Bearer” means anyone in possession from time to time of a Bearer Security.

 

“Bearer Security” means any Security, including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof.

 

“Board of Directors” means the Board of Directors of the Company or any duly authorized committee thereof.

 

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.

 



 

“Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal holiday in The City of New York or in the city where the Corporate Trust Office is located on which banking institutions are authorized or required by law, regulation or executive order to close.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)            in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

(4)            any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“Company” means the party named as such above until a successor replaces it pursuant to Article V hereof and thereafter means the successor.

 

“Company Order” means a written order signed in the name of the Company by two Officers of the Company.

 

“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered.

 

“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.

 

“Depository” means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series.

 

“Discount Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.

 

“Dollars” and “$” means the currency of The United States of America.

 

2



 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Foreign Currency” means any currency or currency unit issued by a government other than the government of The United States of America.

 

“GAAP” means, unless otherwise specified with respect to Securities of a particular Series, generally accepted accounting principles in the United States, which are in effect as of the time when and for the period as to which such accounting principles are to be applied.

 

“Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee.

 

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit.

 

“Guarantor” means any person that issues a guarantee of the Securities, either on the Issue Date or after the Issue Date in accordance with the terms of this Indenture; provided, that upon the release and discharge of such person from its guarantee in accordance with this Indenture, such person shall cease to be a Guarantor.

 

“Holder” or “Securityholder” means a person in whose name a Security is registered or the holder of a Bearer Security.

 

“Indenture” means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.

 

“interest” when used with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Issue Date” means with respect to any Series of Securities the first date such Securities are issued under this Indenture.

 

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof or any agreement to give any security interest).

 

“Maturity,” when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal

 

3



 

becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise.

 

“Officer” means the Chief Executive Officer, the Chief Financial Officer, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.

 

“Officers’ Certificate” means a certificate signed by two Officers, one of whom (in the case of an Officers’ Certificate delivered under Section 4.5 hereof) must be the Company’s principal executive officer, the principal financial officer or the principal accounting officer.

 

“Opinion of Counsel” means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.

 

“person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or other entity or government or any agency or political subdivision thereof.

 

“principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.

 

“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility or be part of the group that has such responsibility for the administration of this Indenture.

 

“SEC” means the Securities and Exchange Commission or any successor agency.

 

“Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.

 

 “Series” or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.

 

 “Stated Maturity” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof.

 

4



 

“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.

 

“Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.

 

Section 1.2.             Other Definitions.

 

TERM

 

DEFINED IN
SECTION

“Bankruptcy Law”

 

6.1

“Covenant Defeasance”

 

8.3

“Custodian”

 

6.1

“Depository Entity”

 

9.5

“Event of Default”

 

6.1

“Legal Defeasance”

 

8.2

“Legal Holiday”

 

12.7

“mandatory sinking fund payment”

 

13.1

“Market Exchange Rate”

 

12.15

“optional sinking fund payment”

 

13.1

“Paying Agent”

 

2.4

“Registrar”

 

2.4

“Service Agent”

 

2.4

 

Section 1.3.             Incorporation by Reference of Trust Indenture Act .

 

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

 

“Commission” means the SEC.

 

“indenture securities” means the Securities.

 

“indenture security holder” means a Securityholder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Trustee.

 

“obligor” on the indenture securities means the Company, any successor obligor upon the Securities or a Guarantor.

 

5



 

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined.

 

Section 1.4.             Rules of Construction .

 

Unless the context otherwise requires:

 

(a)            a term has the meaning assigned to it;

 

(b)            an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(c)            “or” is not exclusive;

 

(d)            “will” shall be interpreted to express a command;

 

(e)            words in the singular include the plural, and in the plural include the singular;

 

(f)             provisions apply to successive events and transactions; and

 

(g)            references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.

 

ARTICLE II.
THE SECURITIES

 

Section 2.1.             Issuable in Series .

 

The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.

 

Section 2.2.             Establishment of Terms of Series of Securities .

 

At or prior to the issuance of any Securities within a Series, the following shall be established by or pursuant to a Board Resolution, and set forth or determined in the manner

 

6



 

provided in a Board Resolution or in a supplemental indenture or in an Officers’ Certificate pursuant to authority granted under a Board Resolution:

 

(a)            the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);

 

(b)            the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;

 

(c)            any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);

 

(d)            whether the Securities rank as senior Securities, senior subordinated Securities or subordinated Securities or any combination thereof and the terms of any such subordination;

 

(e)            the form and terms of any guarantee of any Securities of the series;

 

(f)             the terms and conditions, if any, upon which the Securities of the series shall be exchanged for or converted into other securities of the Company or securities of another person;

 

(g)            the provisions, if any, relating to any security provided for the Securities of the Series;

 

(h)            the date or dates on which the principal of the Securities of the Series is payable;

 

(i)             the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any currency exchange rate, commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, or the method for determining the date or dates from which interest will accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;

 

(j)             the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a currency exchange rate, commodity, commodity index, stock exchange index or financial index;

 

(k)            if other than the Corporate Trust Office, the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and this

 

7



 

Indenture may be served, and the method of such payment, if by wire transfer, mail or other means;

 

(l)             if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;

 

(m)           the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(n)            if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Securities of the Series shall be issuable;

 

(o)            the forms of the Securities of the Series in bearer or fully registered form (and, if in fully registered form, whether the Securities of the Series shall be issued in whole or in part in the form of a Global Security or Securities, and the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities);

 

(p)            any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein;

 

(q)            the Trustee for the series of Securities, if other than the Trustee named on the first page hereof or its successors;

 

(r)             if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;

 

(s)            any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;

 

(t)             any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;

 

(u)            if other than Dollars, the currency of denomination of the Securities of the Series, which may be any Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;

 

(v)            if other than Dollars, the designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;

 

8



 

(w)           if payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;

 

(x)             the securities exchange(s) on which the Securities of the Series will be listed, if any;

 

(y)            additions or deletions to or changes in the provisions relating to covenant defeasance and legal defeasance;

 

(z)             additions or deletions to or changes in the provisions relating to satisfaction and discharge of the Indenture;

 

(aa)          additions or deletions to or changes in the provisions relating to the modification of the Indenture both with and without the consent of holders of Securities of the Series issued under the Indenture; and

 

(bb)          any other terms of the Securities of the Series (which terms may modify, supplement or delete any provision of this Indenture with respect to such Series; provided, however, that no such term may modify or delete any provision hereof if imposed by the TIA; and provided, further, that any modification or deletion of the rights, duties or immunities of the Trustee hereunder shall have been consented to in writing by the Trustee).

 

All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal amount of any Series may be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.

 

Section 2.3.             Execution and Authentication .

 

Two Officers shall sign the Securities for the Company by manual or facsimile signature.

 

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.

 

A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.

 

9


 

The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except as provided in Section 2.9.

 

Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers’ Certificate complying with Section 12.4, and (c) an Opinion of Counsel complying with Section 12.4.

 

The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.

 

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.

 

Section 2.4.             Registrar and Paying Agent .

 

The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such

 

Series and this Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner

 

10



 

relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent” includes any additional service agent.

 

The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.

 

Section 2.5.             Paying Agent to Hold Money in Trust .

 

The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will promptly notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.

 

Section 2.6.             Securityholder Lists .

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish, or shall cause the Registrar to furnish, to the Trustee at least ten days before each interest payment date, but in any event at least once every six months, and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.

 

Section 2.7.             Transfer and Exchange .

 

Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar

 

11



 

governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).

 

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

 

Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.

 

Section 2.8.             Mutilated, Destroyed, Lost and Stolen Securities .

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.

 

12



 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 2.9.             Outstanding Securities .

 

Subject to Section 2.10, the Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.

 

If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.

 

If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds as of 11:00 a.m. Eastern Time on the date of Maturity of Securities of a Series or on any day thereafter (in the case money is deposited by the Company following the date of Maturity) money sufficient to pay such Securities payable on such date of Maturity or on any such later date, as the case may be, then on and after such date of Maturity or such later date, as the case may be, such Securities of the Series cease to be outstanding and interest on them ceases to accrue.

 

A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

 

In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.

 

Section 2.10.           Treasury Securities .

 

In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company or an Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.

 

Section 2.11.           Temporary Securities .

 

Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that

 

13



 

the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.

 

Section 2.12.           Cancellation .

 

The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange, replacement or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities to the Company, unless the Company otherwise directs; provided that the Trustee shall not be required to destroy such Securities. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.

 

Section 2.13.           Defaulted Interest .

 

If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix such special record date and the related payment date. At least 15 days before such special record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states such special record date, the related payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.

 

Section 2.14.           Special Record Dates .

 

(a)            The Company may, but shall not be obligated to, set a record date for the purpose of determining the identity of Holders entitled to consent to any supplement, amendment or waiver permitted by this Indenture. If a record date is fixed, the Holders of such Series and Securities outstanding on such record date, and no other Holders, shall be entitled to consent to such supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders remain Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of such Series and Securities required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.

 

(b)            The Company may, but shall not be obligated to, fix any day as a record date for the purpose of determining the Holders of any Series of Securities entitled to join in the giving or making of any notice of Default, any declaration of acceleration, any request to institute proceedings or any other similar direction. If a record date is fixed, the Holders of such Series and Securities outstanding on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided, however, that no such action shall be effective hereunder unless taken on or prior to the date 90 days after such record date.

 

14



 

(c)            To the extent reasonably practicable, the Company shall give the Trustee a 15-day advance written notice of any special record date set in accordance with this Section 2.14.

 

Section 2.15.           Global Securities .

 

(a)            Terms of Securities . A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities.

 

(b)            Transfer and Exchange . Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall be so exchangeable (subject to the procedures of the Depository) or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.

 

Except as provided in this Section 2.15(b), a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.

 

(c)            Legend . Any Global Security issued hereunder shall bear a legend in substantially the following form:

 

“Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), New York, New York, to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as may be requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as may be requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest herein.”

 

“Transfer of this Global Security shall be limited to transfers in whole, but not in part, to DTC, to nominees of DTC or to a successor thereof or such successor’s nominee and

 

15



 

limited to transfers made in accordance with the restrictions set forth in the Indenture referred to herein.”

 

(d)            Acts of Holders . The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.

 

(e)            Payments . Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.

 

(f)             Consents, Declaration and Directions . Except as provided in Section 2.15(e), the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.

 

Section 2.16.           CUSIP Numbers .

 

The Company in issuing the Securities may use “CUSIP” and/or other similar security identifying numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers (and/or any such other security identifying numbers) in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

 

Section 2.17.           Persons Deemed Owners .

 

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Security is registered in the register kept by the Registrar as the owner of such Security for the purpose of receiving payment of principal of and (subject to the record date provisions thereof) interest on and any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of a Bearer Security as the absolute owner thereof for the purpose of receiving payment of principal of and interest on and any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

No holder of any beneficial interest in any Global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such Global Security, and

 

16



 

such Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

ARTICLE III.
REDEMPTION

 

Section 3.1.             Notice to Trustee .

 

The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 35 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).

 

Section 3.2.             Selection of Securities to be Redeemed .

 

Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed by such method as the Trustee shall deem fair and appropriate.

 

In the event of partial redemption, the Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption a portion of the principal amount of any Security of such Series; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.

 

Section 3.3.             Notice of Redemption .

 

Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Series of Securities or a satisfaction and discharge of this Indenture pursuant to Articles VIII or XI hereof.

 

17



 

The notice shall identify the Securities of the Series to be redeemed and shall state:

 

(a)            the redemption date;

 

(b)            the redemption price (or if not then ascertainable, the manner of calculation thereof);

 

(c)            the name and address of the Paying Agent;

 

(d)            that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(e)            that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;

 

(f)             the CUSIP number, if any; and

 

(g)            any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.

 

Any notice of redemption may be given prior to the redemption thereof, any such redemption of notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a qualified equity offering or other corporation transaction.  At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense.

 

Section 3.4.             Effect of Notice of Redemption.

 

Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price specified in such notice.  If money sufficient to pay the redemption price of and accrued interest on the Securities of a Series to be redeemed is deposited with the Trustee on or before the redemption date, on and after the redemption date interest will cease to accrue on the Securities of a Series (or such portions thereof) called for redemption and such Securities will cease to be outstanding.   Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date; provided that, unless otherwise specified with respect to such Securities pursuant to Section 2.2 hereof, installments of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.

 

Section 3.5.             Deposit of Redemption Price .

 

On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.

 

18


 

Section 3.6.             Securities Redeemed in Part .

 

Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.

 

ARTICLE IV.
COVENANTS

 

Section 4.1.             Payment of Principal and Interest .

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will pay or cause to be paid the principal of, and premium, if any, and interest on, the Securities of that Series on the dates and in the manner provided in such Securities. Principal of, and premium, if any, and interest on any Series of Securities will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal with respect to such Securities at the rate specified therefor in the Securities; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

 

Section 4.2.             Additional Amounts .

 

If any Securities of a Series provide for the payment of Additional Amounts, the Company agrees to pay to the Holder of any such Security Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or interest on, or in respect of, any Security of any Series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such Series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

Section 4.3.             Maintenance of Office or Agency .

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will maintain an office or agency (which may be an office of the Trustee for such Securities or an Affiliate of such Trustee, Registrar for such Securities or co-registrar) where such Securities may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of such Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee for such Securities

 

19



 

of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish such Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee.

 

The Company may also from time to time designate one or more other offices or agencies where Holders of a Series of Securities may present or surrender such Securities for any or all such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee for such Series of Securities of any such designation or rescission and of any change in the location of any such other office or agency.

 

With respect to each Series of Securities, the Company hereby designates the Corporate Trust Office of the Trustee for such Securities as one such office or agency of the Company in accordance with Section 2.4 hereof.

 

Section 4.4.             SEC Reports .

 

Unless otherwise specified with respect to Securities of a particular Series pursuant to Section 2.2, the Company will, if and to the extent required under the TIA, so long as any securities of a particular Series are outstanding:

 

(a)            make available to the Trustee and the Holders of Securities copies of the annual reports and of the information, documents and other reports which the Company may be required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, provided that for this purpose the filing with the SEC of such reports, information and documents shall be sufficient; or

 

(b)            if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, make available to the Trustee and the Holders of the Securities (including by means of a public or private website), substantially similar periodic information (excluding exhibits) which would be required to be included in periodic reports on Form 10-K, 10-Q and 8-K (or any successor form or forms) under the Exchange Act within the time periods set forth in the applicable SEC rules and regulations as if the Company were a non-accelerated filer as defined in such applicable SEC rules and regulations, provided that in each case such information may be subject to exclusions if the Company in good faith determines that such excluded information would not to be material to the interests of the holders of any Series of Securities.

 

The delivery of such reports, information and documents to the Trustee pursuant to this Section 4.4 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

 

Section 4.5.             Compliance Certificate .

 

(a)            The Company and each Guarantor of any Series of Securities (to the extent that such guarantor is so required under the TIA) shall deliver to the Trustee with respect

 

20



 

to such Series, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Series of Securities is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

 

(b)            So long as any Series of Securities is outstanding, the Company will deliver to the Trustee with respect to such Series, forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

 

Section 4.6.             Taxes .

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of such Securities.

 

Section 4.7.             Stay, Extension and Usury Laws .

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities (to the extent that it may lawfully do so) that it will not, and each Guarantor of such Securities will not, at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each such Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee for such Securities, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

Section 4.8.             Corporate Existence .

 

Subject to Article V hereof, the Company covenants and agrees for the benefit of the Holders of each Series of Securities that it shall do or cause to be done all things necessary to preserve and keep in full force and effect its legal existence and rights and franchises; provided, however, that the foregoing shall not obligate the Company to preserve any such right or

 

21



 

franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof is not disadvantageous in any material respect to any Holder.

 

ARTICLE V.
SUCCESSORS

 

Section 5.1.             Merger, Consolidation, or Sale of Assets .

 

The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it shall not, directly or indirectly: (a) consolidate or merge with or into another person (whether or not the Company is the surviving corporation) or (b) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactions, to another person, unless:

 

(i)             the Company shall be the continuing entity, or the resulting, surviving or transferee person shall be a corporation, partnership, limited liability company, trust or other entity organized and validly existing under the laws of any domestic or foreign jurisdiction, and such successor person (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance with its terms;

 

(ii)            immediately after such transaction, no Default or Event of Default exists; and

 

(iii)           the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article V and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

This Section 5.1 will not apply to:

 

(1)            a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or

 

(2)            any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries.

 

22



 

Section 5.2.             Successor Person Substituted .

 

Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof, the successor person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the successor person and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on any Series of Securities except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.1 hereof.

 

ARTICLE VI.
DEFAULTS AND REMEDIES

 

Section 6.1.             Events of Default .

 

“Event of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:

 

(a)            default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days; or

 

(b)            default in payment when due of the principal of, or premium, if any, on any Security of that Series; or

 

(c)            default, for 90 days after receipt of written notice given by the Trustee or the Holders of not less than 25% in principal amount of the Securities of that Series then outstanding, in the performance or breach of any Covenant for the benefit of the holders of the Securities of that Series (other than a default referred to in clauses (a) and (b) above and other than a Covenant which has been included in this Indenture solely for the benefit of any Series of Securities other than that Series); or

 

(d)            the Company pursuant to or within the meaning of any Bankruptcy Law:

 

(i)             commences a voluntary case,

 

(ii)            consents to the entry of an order for relief against it in an involuntary case,

 

23



 

(iii)           consents to the appointment of a Custodian of it or for all or substantially all of its property,

 

(iv)           makes a general assignment for the benefit of its creditors, or

 

(v)            generally is unable to pay its debts as the same become due; or

 

(e)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(i)             is for relief against the Company in an involuntary case,

 

(ii)            appoints a Custodian of the Company or for all or substantially all of its property, or

 

(iii)           orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or

 

(f)             any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2.

 

The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

 

A Default under clause (d) above is not an Event of Default with respect to a particular Series of Securities until the Trustee notifies the Company, or the Holders of more than 25% in principal amount of the then outstanding Securities of that Series notify the Company and the Trustee of the Default, and the Company does not cure the Default within 90 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.” Such notice shall be given by the Trustee if so requested in writing by the Holders of more than 25% of the principal amount of the then outstanding Securities of that Series.

 

Section 6.2.             Acceleration .

 

If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in every such case the Trustee or the Holders of more than 25% in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities

 

24



 

shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

At any time after such a declaration of acceleration with respect to any Series has been made, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.

 

No such rescission shall affect any subsequent Default or impair any right consequent thereon.

 

Section 6.3.             Other Remedies .

 

If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and, premium, if any, and interest on such Securities or to enforce the performance of any provision of such Securities or this Indenture.

 

The Trustee for such Securities may maintain a proceeding even if it does not possess any of such Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of Securities in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

 

Section 6.4.             Waiver of Past Defaults .

 

Holders of not less than a majority in aggregate principal amount of the then outstanding Securities of any Series by notice to the Trustee for such Securities may on behalf of the Holders of all of such Securities waive an existing Default or Event of Default with respect to such Securities and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, or premium, if any, or interest on, such Securities or in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each outstanding Security of the Series affected; provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Securities of any Series may rescind an acceleration of such Securities and its consequences, including any related payment default that resulted from such acceleration, in accordance with Section 6.2. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 6.5.             Control by Majority .

 

Holders of a majority in aggregate principal amount of the then outstanding Securities of any Series may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee for such Securities or exercising any trust or power conferred on it. However, the Trustee for any Series of Securities may refuse to follow

 

25



 

any direction that conflicts with law or this Indenture that such Trustee determines may be unduly prejudicial to the rights of other Holders of such Securities or that may involve the Trustee in personal liability.

 

Section 6.6.             Limitation on Suits .

 

A Holder of any Series of Securities may pursue a remedy with respect to this Indenture or such Securities only if:

 

(a)            such Holder gives to the Trustee for such Securities written notice that an Event of Default with respect to such Series is continuing;

 

(b)            Holders of more than 25% in aggregate principal amount of the then outstanding Securities of such Series make a written request to the Trustee for such Securities to pursue the remedy;

 

(c)            such Holder or Holders offer and, if requested, provide to the Trustee for such Securities security or indemnity reasonably satisfactory to such Trustee against any loss, liability or expense;

 

(d)            such Trustee does not comply with the request within 90 days after receipt of the request and the offer of security or indemnity; and

 

(e)            during such 90-day period, Holders of a majority in aggregate principal amount of the then outstanding Securities of such Series do not give such Trustee a direction inconsistent with such request.

 

A Holder of any Series of Securities may not use this Indenture to prejudice the rights of another Holder of such Series of Securities or to obtain a preference or priority over another Holder of Securities of such Series.

 

Section 6.7.             Rights of Holders of Securities to Receive Payment .

 

Notwithstanding any other provision of this Indenture, the right of any Holder of a Security of any Series to receive payment of principal of and, premium, if any, and interest on such Securities, on or after the respective due dates expressed in such Securities (including, if applicable, in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 6.8.             Collection Suit by Trustee .

 

If an Event of Default specified in Section 6.1(a), (b) or (c) hereof with respect to Securities of any Series occurs and is continuing, the Trustee for such Securities is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of and, premium, if any, and interest remaining unpaid on, such Securities and interest on overdue principal and, to the extent lawful, overdue interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the

 

26



 

reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.

 

Section 6.9.             Trustee May File Proofs of Claim .

 

The Trustee for each Series of Securities is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel) and the Holders of the Securities for which it acts as trustee allowed in any judicial proceedings relative to the Company (or any other obligor upon such Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder of such Securities to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to such Holders, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under the Indenture. To the extent that the payment of any such compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that such Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize such Trustee to authorize or consent to or accept or adopt on behalf of any Holder for which it acts as trustee any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of such Holder, or to authorize such Trustee to vote in respect of the claim of any such Holder in any such proceeding.

 

Section 6.10.           Priorities .

 

If the Trustee of any Series of Securities collects any money pursuant to this Article VI, it shall pay out the money in the following order:

 

First : to the Trustee, its agents and attorneys for amounts due under the Indenture, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second : to Holders of such Securities for amounts due and unpaid on such Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any and interest, respectively; and

 

Third : to the Company or to such party as a court of competent jurisdiction shall direct.

 

Subject to Section 2.14 hereof, the Trustee may fix a record date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.

 

27


 

Section 6.11.                              Undertaking for Costs .

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against any Trustee for any action taken or omitted by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.6 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Securities of any Series.

 

ARTICLE VII.
TRUSTEE

 

Section 7.1.                                    Duties of Trustee .

 

(a)                                   Subject to Section 7.2(h), if an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(b)                                  Except during the continuance of an Event of Default:

 

(i)                                      The Trustee need perform only those duties that are specifically set forth in this Indenture and no others.

 

(ii)                                   In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture.

 

(c)                                   The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(i)                                      This paragraph does not limit the effect of paragraph (b) of this Section.

 

(ii)                                   The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.

 

(iii)                                The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith

 

28



 

in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.

 

(d)                                  Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.

 

(e)                                   The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense.

 

(f)                                     The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

(g)                                  No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.

 

(h)                                  The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee.

 

Section 7.2.                                    Rights of Trustee .

 

(a)                                   The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

 

(b)                                  Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate.

 

(c)                                   The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.

 

(d)                                  The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith.

 

(e)                                   The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of

 

29



 

Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

 

(f)                                     The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.

 

(g)                                  The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.

 

(h)                                  The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.

 

(i)                                      The Trustee shall not be required to provide any bond or surety with respect to the execution of these trusts and powers.

 

Section 7.3.                                    Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.

 

Section 7.4.                                    Trustee’s Disclaimer .

 

The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication of such Securities.

 

Section 7.5.                                    Notice of Defaults .

 

If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding, mail in the manner provided by in TIA § 313(c), notice of a Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers

 

30



 

in good faith determines that withholding the notice is in the interests of Securityholders of that Series.

 

Section 7.6.                                    Reports by Trustee to Holders .

 

Within 60 days after May 15 in each year following the issuance of a Series of Securities under this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, transmit by mail in accordance with TIA § 313(c), a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA § 313(a).

 

A copy of each report at the time of its mailing to Securityholders of any Series shall be filed by the Trustee with the SEC and each stock exchange on which the Securities of that Series are listed, if any. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.

 

Section 7.7.                                    Compensation and Indemnity .

 

The Company shall pay to the Trustee from time to time such compensation for its services as the Company and the Trustee shall agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.

 

The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.

 

The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith.

 

To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee pursuant to Section 8.4, except that held in trust to pay principal of and interest on particular Securities of that Series.

 

31



 

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.

 

The provisions of this Section shall survive the termination of this Indenture.

 

Section 7.8.                                    Replacement of Trustee .

 

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

 

The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:

 

(a)                                   the Trustee fails to comply with Section 7.10;

 

(b)                                  the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(c)                                   a Custodian or public officer takes charge of the Trustee or its property; or

 

(d)                                  the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed with respect to the Securities of a Series or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee with respect to the Securities of such Series. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities of such Series may appoint a successor Trustee with respect to the Securities of such Series to replace the successor Trustee appointed by the Company.

 

If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper.

 

32



 

Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.

 

Section 7.9.                                    Successor Trustee by Merger, etc.

 

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

Section 7.10.                              Eligibility; Disqualification .

 

This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1) and (2) and does not violate the prohibitions in TIA § 310(a)(5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).

 

Section 7.11.                              Preferential Collection of Claims Against Company .

 

The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.

 

ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

Section 8.1.                                    Option to Effect Legal Defeasance or Covenant Defeasance .

 

The Company may at any time elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Securities of any Series upon compliance with the conditions set forth below in this Article VIII.

 

Section 8.2.                                    Legal Defeasance and Discharge .

 

Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.2, the Company and each Guarantor, if any, of such Securities will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its or their obligations with respect to all outstanding Securities of such Series (including the related guarantees, if any) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and such Guarantors will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of such Series (including the related guarantees, if any), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied all its or their other obligations under such Securities, such guarantees, if any, and this Indenture (and the Trustee for such Securities, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:

 

33



 

(a)                                   the rights of Holders of outstanding Securities of such Series to receive payments in respect of the principal of, or interest or premium, if any, on, such Securities when such payments are due solely out of the trust referred to in Section 8.4 hereof;

 

(b)                                  the Company’s obligations with respect to such Securities under Article II hereof;

 

(c)                                   the rights, powers, trusts, duties and immunities of the Trustee for such Securities hereunder and the Company’s and the Guarantors’, if any, obligations in connection therewith; and

 

(d)                                  this Article VIII.

 

Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.

 

Section 8.3.                                    Covenant Defeasance .

 

Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, the Company and each of the Guarantors, if any, will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from each of its or their obligations under the covenants contained in Sections 4.3, 4.4, 4.5, 4.6 and 4.7, Section 5.1, and covenants specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2, with respect to the outstanding Securities of the applicable Series on and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and such Securities will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of such Securities (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of such Series, the Company may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(d) or 6.1(g) hereof will not constitute Events of Default.

 

Section 8.4.                                    Conditions to Legal or Covenant Defeasance .

 

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.2 or 8.3 hereof with respect to Securities of any Series:

 

(a)                                   the Company must irrevocably deposit with the Trustee for such Securities, in trust, solely for the benefit of the Holders of such Securities, cash in Dollars, non-

 

34



 

callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, and premium, if any, and interest on, the outstanding Securities of such Series on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether such Securities are being defeased to such stated date for payment or to a particular redemption date;

 

(b)                                  in the case of an election under Section 8.2 hereof, the Company must deliver to the Trustee for such Securities an Opinion of Counsel confirming that:

 

(1)                                   the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

 

(2)                                   since the date of this Indenture, there has been a change in the applicable federal income tax law,

 

in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders and beneficial owners of the outstanding Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(c)                                   in the case of an election under Section 8.3 hereof, the Company must deliver to the Trustee for such Securities an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(d)                                  no Default or Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens in connection therewith);

 

(e)                                   such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (other than that resulting from the borrowing of funds to be applied to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens in connection therewith);

 

(f)                                     the Company must deliver to the Trustee for such Securities an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the

 

35



 

Holders of such Securities over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and

 

(g)                                  the Company must deliver to the Trustee for such Securities an Officers’ Certificate and an Opinion of Counsel (which opinion of counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

Section 8.5.                                    Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions .

 

Subject to Section 8.6 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding Securities of any Series will be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 

The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.4 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities of the applicable Series.

 

Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4 hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

Section 8.6.                                    Repayment to Company .

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, or premium, if any, or interest on, any Series of Securities and remaining unclaimed for one year after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holders of such Securities will thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company

 

36



 

cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 8.7.                                    Reinstatement .

 

If, in connection with a Legal Defeasance or Covenant Defeasance, the Trustee or Paying Agent is unable to apply any Dollars or non-callable Government Securities in accordance with Section 8.5, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and any applicable Guarantors’ obligations under this Indenture and the applicable Securities and the guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.5; provided, however, that, if the Company makes any payment of principal of or interest on any such Securities following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

 

ARTICLE IX.
AMENDMENTS AND WAIVERS

 

Section 9.1.                                    Without Consent of Holders .

 

Notwithstanding Section 9.2 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:

 

(a)                                   to cure any ambiguity, defect or inconsistency;

 

(b)                                  to provide for uncertificated Securities in addition to or in place of certificated Securities;

 

(c)                                   to provide for the assumption of the Company’s obligations to the Holders of the Securities by a successor to the Company pursuant to Article V hereof;

 

(d)                                  to add any additional Events of Default with respect to all or any Series of Securities outstanding hereunder;

 

(e)                                   to secure the Securities pursuant to the requirements of any covenant on liens in respect of such series of Securities or otherwise;

 

(f)                                     to change or eliminate any of the provisions of this Indenture, or to add any new provision to this Indenture, in respect of one or more series of Securities; provided, however, that any such change, elimination or addition (A) shall neither (i) apply to any Security outstanding on the date of such indenture supplemental hereto nor (ii) modify the rights of the Holder of any such Security with respect to such provision in

 

37



 

effect prior to the date of such indenture supplemental hereto or (B) shall become effective only when no Security of such series remains outstanding;

 

(g)                                  to make any change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the Holders’ rights hereunder in any material respect;

 

(h)                                  to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;

 

(i)                                      to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;

 

(j)                                      to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;

 

(k)                                   to add an additional Guarantor or obligor under this Indenture; or

 

(l)                                      to conform any provision of this Indenture, the Securities of any Series or any related guarantees or security documents to the description of such Securities contained in the Company’s prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the Securities of such Series to the extent that such description was intended to be a verbatim recitation of a provision in the Indenture, such Securities or any related guarantees or security documents.

 

Upon the request of the Company and upon receipt by the Trustee of the documents described in Section 12.4 hereof, the Trustee will join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

Section 9.2.                                    With Consent of Holders .

 

The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.4, the Holders of at least a majority in principal amount of the outstanding Securities of each Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.

 

38


 

It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. Upon the request of the Company and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon receipt by the Trustee of the documents described in Section 12.4 hereof, the Trustee will join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.

 

After a supplemental indenture or waiver under this section becomes effective, the Company shall promptly mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.

 

Section 9.3.                                    Limitations .

 

Without the consent of each Securityholder affected, an amendment, supplement or waiver may not (with respect to any Securities held by a non-consenting Holder):

 

(a)                                   change the amount of Securities whose Holders must consent to an amendment, supplement or waiver;

 

(b)                                  reduce the rate of or extend the time for payment of interest (including default interest) on any Security;

 

(c)                                   reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;

 

(d)                                  reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;

 

(e)                                   waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);

 

(f)                                     make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;

 

(g)                                  make any change in Sections 6.4, 6.7 or 9.3; or

 

(h)                                  waive a redemption payment with respect to any Security.

 

39



 

Section 9.4.                                    Compliance with Trust Indenture Act .

 

Every amendment or supplement to this Indenture or the Securities of one or more Series shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.

 

Section 9.5.                                    Revocation and Effect of Consents .

 

(a)                                   Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder subject to Section 9.5(d) may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective.

 

(b)                                  An amendment, supplement or waiver effective in accordance with its terms will thereafter bind every Holder.

 

(c)                                   For purposes of this Indenture, the consent of the Holder of a Global Security shall be deemed to include any consent delivered by any member of, or participant in, any Depository, any nominees thereof and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company (“Depository Entity”) by electronic means in accordance with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to authorization by, such Depository Entity.

 

(d)                                  The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to revoke any consent previously given, whether or not such persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date. The Company shall inform the Trustee of the fixed record date, if applicable.

 

(e)                                   Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

 

Section 9.6.                                    Notation on or Exchange of Securities .

 

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.

 

40



 

Section 9.7.                                    Trustee Protected .

 

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.

 

ARTICLE X.
GUARANTEES

 

Section 10.1.                              Guarantees .

 

Any Series of Securities may be guaranteed by one or more of the Guarantors. The terms and the form of any such guarantee will be established in the manner contemplated by Section 2.2 for that particular Series of Securities.

 

ARTICLE XI.
SATISFACTION AND DISCHARGE

 

Section 11.1.                              Satisfaction and Discharge .

 

This Indenture will be discharged and will cease to be of further effect as to a Series of Securities issued hereunder, when:

 

(a)                                   either:

 

(i)                                      all such Securities that have been authenticated, except lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or

 

(ii)                                   all such Securities that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of such Securities, cash in Dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on such Securities not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;

 

(b)                                  no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor of such

 

41



 

Securities is a party or by which the Company or any such Guarantor is bound (other than a breach, violation or default resulting from the borrowing of funds to be applied to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens in connection therewith);

 

(c)                                   the Company or any Guarantor of such Securities has paid or caused to be paid all sums payable by it under this Indenture; and

 

(d)                                  the Company has delivered irrevocable instructions to the Trustee for such Securities under this Indenture to apply the deposited money toward the payment of such Securities at maturity or on the redemption date, as the case may be.

 

In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for such Securities stating that all conditions precedent to satisfaction and discharge have been satisfied, and all fees and expenses of the Trustee shall have been paid.

 

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof will survive. In addition, nothing in this Section 11.1 will be deemed to discharge those provisions of Section 7.7 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.

 

Section 11.2.                              Application of Trust Money .

 

Subject to the provisions of Section 8.6 hereof, all money or Government Securities deposited with the Trustee pursuant to Section 11.1 hereof shall be held in trust and applied by it, in accordance with the provisions of the Securities with respect to with such deposit was made and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any applicable Guarantor’s obligations under this Indenture and the applicable Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1 hereof; provided that if the Company has made any payment of principal of, or premium, if any, or interest on, any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

 

42



 

ARTICLE XII.
MISCELLANEOUS

 

Section 12.1.                              Trust Indenture Act Controls .

 

If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.

 

Section 12.2.                              Notices .

 

Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and (a) delivered in person, (b) mailed by first-class mail or overnight mail, (c) sent by overnight air courier with next Business Day delivery or (d) delivered electronically (in .pdf or similar format) if, in case of electronic notices, receipt is confirmed:

 

if to the Company:

 

Dollar General Corporation

100 Mission Ridge

Goodlettsville, Tennessee 37072

Telephone No.: (615) 855-4000

Facsimile No.: (615) 855-5172

Attention: Susan Lanigan

 

With a copy to:

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Facsimile No.: (212) 455-2502

Attention: Joseph H. Kaufman

 

if to the Trustee:

 

U.S. Bank National Association

150 Fourth Avenue North, 2nd Floor

Nashville, Tennessee 37219

Telephone No.: (615) 251-0733

Facsimile No.: (615) 251-0737

Attention: Wally Jones

 

The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business

 

43



 

Days after being deposited in the mail, postage prepaid, if mailed; the next Business Day after timely delivery to the courier, if sent by overnight air courier for next Business Day delivery; and when receipt is confirmed, if delivered electronically.

 

Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper, unless otherwise provided with respect to the applicable Series. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.

 

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.

 

If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.

 

Where the Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depository for such Global Security (or its designee), pursuant to the applicable procedures of the Depository, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.

 

Section 12.3.                              Communication by Holders with Other Holders .

 

Securityholders of any Series may communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

 

Section 12.4.                              Certificate and Opinion as to Conditions Precedent .

 

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:

 

(a)                                   an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

 

(b)                                  an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

 

44



 

Section 12.5.                              Statements Required in Certificate or Opinion .

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.5 hereof and TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:

 

(a)                                   a statement that the person making such certificate or opinion has read such covenant or condition;

 

(b)                                  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c)                                   a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d)                                  a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

Section 12.6.                              Rules by Trustee and Agents .

 

The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 12.7.                              Legal Holidays .

 

Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.

 

Section 12.8.                              No Recourse Against Others .

 

No past, present or future director, officer, stockholder or employee, as such, of the Company or any successor corporation shall have any liability for any obligation of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the execution of this Indenture and the issue of the Securities.

 

Section 12.9.                              Counterparts .

 

This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

45



 

Section 12.10.                        Governing Law; Waiver of Trial by Jury .

 

THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED THEREBY.

 

Section 12.11.                        No Adverse Interpretation of Other Agreements .

 

This Indenture may not be used to interpret any other indenture, loan or debt or other agreement of the Company or its Subsidiaries or of any other person. Any such indenture, loan or debt or other agreement may not be used to interpret this Indenture.

 

Section 12.12.                        Successors .

 

All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.

 

Section 12.13.                        Severability .

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 12.14.                        Table of Contents, Headings, Etc .

 

The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 12.15.                        Securities in a Foreign Currency .

 

Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 12.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more

 

46



 

major banks in The City of New York or in the country of issue of the currency in question or such other quotations as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.

 

All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the Company and all Holders.

 

ARTICLE XIII.
SINKING FUNDS

 

Section 13.1.                              Applicability of Article .

 

The provisions of this Article XIII shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.

 

The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.

 

Section 13.2.                              Satisfaction of Sinking Fund Payments with Securities .

 

The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (b) apply as a credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 13.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee

 

47



 

need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.

 

Section 13.3.                              Redemption of Securities for Sinking Fund .

 

Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 13.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.

 

48



 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

 

DOLLAR GENERAL CORPORATION

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

a national banking association

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

49




Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Dollar General Corporation for the registration of its Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Stock Purchase Contracts, Units and Guarantees of Debt Securities and to the incorporation by reference therein of our report dated March 22, 2012, with respect to the consolidated financial statements of Dollar General Corporation included in its Annual Report (Form 10-K) for the year ended February 3, 2012, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

 

Nashville, Tennessee

June 27, 2012

 


 



Exhibit 24.2

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, William C. Bass, Chief Executive Officer of Dollar General Corporation’s subsidiary registrants: DG Strategic VI, LLC, Dolgen Midwest, LLC, Dolgencorp of Texas, Inc., and Dolgen California, LLC (collectively, the “Registrants”), does hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, to sign in any and all capacities (including, without limitation, the capacities listed below), the registration statement, any and all amendments (including post-effective amendments) to the registration statement and any and all successor registration statements of the Registrants, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done to enable the Registrants to comply with the provisions of the Securities Act of 1933, as amended, and all the requirements of the Securities and Exchange Commission, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.

 

[ The Remainder of this Page is Intentionally Left Blank; Signature Page Follows ]

 



 

IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of June 26, 2012.

 

 

 

/s/ William C. Bass

 

Name:

William C. Bass

 

Title:

Chief Executive Officer of each of DG Strategic VI, LLC, Dolgen Midwest, LLC, Dolgencorp of Texas, Inc., and Dolgen California, LLC

 




Exhibit 24.3

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, John W. Flanigan, the Chief Executive Officer of Dollar General Corporation’s subsidiary registrant DG Strategic VII, does hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, to sign in any and all capacities (including, without limitation, the capacities listed below), the registration statement, any and all amendments (including post-effective amendments) to the registration statement and any and all successor registration statements of DG Strategic VII, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done to enable DG Strategic VII to comply with the provisions of the Securities Act of 1933, as amended, and all the requirements of the Securities and Exchange Commission, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.

 

[ The Remainder of this Page is Intentionally Left Blank; Signature Page Follows ]

 



 

IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of June 26, 2012.

 

 

 

/s/ John W. Flanigan

 

Name:

John W. Flanigan

 

Title:

Chief Executive Officer of DG Strategic VII

 




Exhibit 24.4

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, John W. Feray, Senior Vice President and Chief Financial Officer of Dollar General Corporation’s subsidiary registrants: DG Strategic VI, LLC, DG Strategic VII, Dolgen Midwest, LLC, Dolgencorp of Texas, Inc., and Dolgen California, LLC (collectively, the “Registrants”), does hereby constitute and appoint David M. Tehle and Susan S. Lanigan, or either of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, to sign in any and all capacities (including, without limitation, the capacities listed below), the registration statement, any and all amendments (including post-effective amendments) to the registration statement and any and all successor registration statements of the Registrants, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done to enable the Registrants to comply with the provisions of the Securities Act of 1933, as amended, and all the requirements of the Securities and Exchange Commission, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.

 

[ The Remainder of this Page is Intentionally Left Blank; Signature Page Follows ]

 



 

IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of June 26, 2012.

 

 

 

/s/ John W. Feray

 

Name:

John W. Feray

 

Title:

Senior Vice President and Chief Financial Officer of each of DG Strategic VI, LLC, DG Strategic VII, Dolgen Midwest, LLC, Dolgencorp of Texas, Inc., and Dolgen California, LLC

 




 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)

 


 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall
Minneapolis, Minnesota

 

55402

(Address of principal executive offices)

 

(Zip Code)

 

Wally Jones
U.S. Bank National Association
150 Fourth Avenue North, 2
nd  Floor
Nashville, TN 37219
(615) 251-0733

(Name, address and telephone number of agent for service)

 

Dollar General Corporation

(Issuer with respect to the Securities)

 

TENNESSEE

 

61-0502302

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

100 MISSION RIDGE
GOODLETTSVILLE, TN

 

37072

(Address of Principal Executive Offices)

 

(Zip Code)

 

Senior Notes
Guarantees of Senior Notes

(Title of the Indenture Securities)

 

 

 


 

TABLE OF ADDITIONAL REGISTRANT GUARANTORS

 

Exact Name of Additional Registrant
Guarantor as Specified
in its Charter (or Other Organizational
Document)

 

State or Other
Jurisdiction of
Incorporation
or Organization

 

I.R.S.
Employer
Identification
Number

 

Address, Including Zip Code, and
Telephone Number, including
Area Code, of
Additional Registrant Guarantor’s
Principal Executive Offices

DC Financial, LLC

 

Tennessee

 

None

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG eCommerce, LLC

 

Tennessee

 

27-2199273

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Logistics, LLC

 

Tennessee

 

62-1805098

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Promotions, Inc.

 

Tennessee

 

62-1792083

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Retail, LLC

 

Tennessee

 

36-4577242

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic I, LLC

 

Tennessee

 

26-4507991

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic II, LLC

 

Tennessee

 

26-4508076

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VI, LLC

 

Tennessee

 

27-2199673

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VII, LLC

 

Tennessee

 

27-2199597

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Strategic VIII, LLC

 

Tennessee

 

27-2199514

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

DG Transportation, Inc.

 

Tennessee

 

37-1517488

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen I, Inc.

 

Tennessee

 

26-4508189

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen II, Inc.

 

Tennessee

 

26-4508236

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

 

2



 

Exact Name of Additional Registrant
Guarantor as Specified
in its Charter (or Other Organizational
Document)

 

State or Other
Jurisdiction of
Incorporation
or Organization

 

I.R.S.
Employer
Identification
Number

 

Address, Including Zip Code, and
Telephone Number, including
Area Code, of
Additional Registrant Guarantor’s
Principal Executive Offices

Dolgen III, Inc.

 

Tennessee

 

26-4508282

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen California, LLC

 

Tennessee

 

27-2199414

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgen Midwest, LLC

 

Tennessee

 

26-4508134

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp of New York, Inc.

 

Kentucky

 

62-1829863

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp of Texas, Inc.

 

Kentucky

 

61-1193136

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dolgencorp, LLC

 

Kentucky

 

61-0852764

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Dollar General Partners

 

Kentucky

 

61-1193137

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Retail Property Investments, LLC

 

Delaware

 

27-3334742

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Retail Risk Solutions, LLC

 

Tennessee

 

26-1644044

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

South Boston FF&E, LLC

 

Delaware

 

26-0411224

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

South Boston Holdings, Inc.

 

Delaware

 

20-5220571

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

Sun-Dollar, L.P.

 

California

 

95-4629930

 

100 Mission Ridge,
Goodlettsville, TN 37072
(615) 855-4000

 

3



 

FORM T-1

 

Item 1.                                    GENERAL INFORMATION .   Furnish the following information as to the Trustee.

 

a)               Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

 

b)              Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.                                    AFFILIATIONS WITH OBLIGOR.   If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15                                       Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.                             LIST OF EXHIBITS:  List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.                A copy of the Articles of Association of the Trustee.*

 

2.                A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.                A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.                A copy of the existing bylaws of the Trustee.**

 

5.                A copy of each Indenture referred to in Item 4.  Not applicable.

 

6.                The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.                Report of Condition of the Trustee as of March 31, 2012 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 


* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

** Incorporated by reference to Exhibit 25.1 to registration statement on S-4, Registration Number 333-166527 filed on May 5, 2010.

 

4



 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Nashville, State of Tennessee on the 21st of June, 2012.

 

 

 

By:

/s/ Wally Jones

 

 

 

Wally Jones

 

 

 

Vice President

 

5


 

Exhibit 2

 

 

Comptroller of the Currency
Administrator of National Banks

 

Washington, DC 20219

 

CERTIFICATE OF CORPORATE EXISTENCE

 

I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:

 

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.

 

2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.

 

 

 

 

 

IN TESTIMONY WHEREOF, today, May 9, 2012, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.

 

 

 

 

6



 

Exhibit 3

 

 

Comptroller of the Currency

Administrator of National Banks

 

Washington, DC 20219

 

CERTIFICATE OF FIDUCIARY POWERS

 

I, John Walsh, Acting Comptroller of the Currency, do hereby certify that:

 

1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and control of all records pertaining to the chartering, regulation and supervision of all National Banking Associations.

 

2. “U.S. Bank National Association,” Cincinnati, Ohio, (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, l962, 76 Stat.668, 12 U.S.C. 92 a, and that the authority so granted remains in full force and effect on the date of this Certificate.

 

 

 

IN TESTIMONY WHERE OF, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the Treasury Department, in the City of Washington and District of Columbia, this September 9, 2010.

 

 

 

Acting Comptroller of the Currency

 

7


 

Exhibit 6

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

 

Dated: June 21, 2012

 

 

 

 

By:

/s/ Wally Jones

 

 

 

Wally Jones

 

 

 

Vice President

 

8



 

Exhibit 7

 

U.S. Bank National Association

Statement of Financial Condition

As of 3/31/2012

 

($000’s)

 

 

 

3/31/2012

 

Assets

 

 

 

Cash and Balances Due From Depository Institutions

 

$

9,560,436

 

Securities

 

72,930,403

 

Federal Funds

 

33,777

 

Loans & Lease Financing Receivables

 

204,146,986

 

Fixed Assets

 

5,372,613

 

Intangible Assets

 

12,620,805

 

Other Assets

 

25,562,406

 

Total Assets

 

$

330,227,426

 

 

 

 

 

Liabilities

 

 

 

Deposits

 

$

238,678,346

 

Fed Funds

 

6,937,931

 

Treasury Demand Notes

 

0

 

Trading Liabilities