EXHIBIT 10.2
EXECUTION
COUNTERPART
364-DAY REVOLVING CREDIT AGREEMENT
dated as of June 21, 2002
among
DOLLAR GENERAL CORPORATION
as Borrower
THE LENDERS FROM TIME TO TIME PARTIES HERETO
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
KEYBANK NATIONAL ASSOCIATION
and U.S. BANK NATIONAL ASSOCIATION
as Co-Documentation Agents
and
SUNTRUST BANK
as Administrative Agent
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SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL MARKETS,
a division of SunTrust Capital Markets, Inc.,
as Sole Lead Arranger
TABLE OF CONTENTS
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CREDIT SUISSE FIRST BOSTON...............................................................i
ARTICLE I DEFINITIONS; CONSTRUCTION...................................................1
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Section 1.1. Definitions...................................................1
Section 1.2. Classifications of Loans and Borrowings......................21
Section 1.3. Accounting Terms and Determination...........................21
Section 1.4. Terms Generally..............................................22
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........................................22
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Section 2.1. General Description of Facilities............................22
Section 2.2. Loans........................................................22
Section 2.3. Procedure for Borrowings.....................................23
Section 2.4. Funding of Borrowings........................................23
Section 2.5. Interest Elections...........................................24
Section 2.6. Optional Reduction and Termination of Commitments............25
Section 2.7. Repayment of Loans...........................................25
Section 2.8. Evidence of Indebtedness.....................................25
Section 2.9. Optional Prepayments.........................................26
Section 2.10. Mandatory Prepayments and Commitment Reductions..............26
Section 2.11. Interest on Loans............................................28
Section 2.12. Fees.........................................................29
Section 2.13. Computation of Interest and Fees.............................29
Section 2.14. Inability to Determine Interest Rates........................29
Section 2.15. Illegality...................................................30
Section 2.16. Increased Costs..............................................30
Section 2.17. Funding Indemnity............................................31
Section 2.18. Taxes........................................................32
Section 2.19. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs..........................................34
Section 2.20. Mitigation of Obligations....................................35
Section 2.20. Mitigation of Obligations. TC................................36
ARTICLE III CONDITIONS PRECEDENT TO LOANS.............................................36
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Section 3.1. Conditions To Effectiveness..................................36
Section 3.2. Each Credit Event............................................39
Section 3.3. Delivery of Documents........................................40
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................40
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Section 4.1. Existence; Power.............................................40
Section 4.2. Organizational Power; Authorization..........................40
Section 4.3. Governmental Approvals; No Conflicts.........................40
Section 4.4. Financial Statements.........................................41
Section 4.5. Litigation and Environmental Matters.........................41
Section 4.6. Compliance with Laws.........................................41
Section 4.7. Investment Company Act, Etc..................................42
Section 4.8. Taxes........................................................42
Section 4.9. Margin Regulations...........................................42
Section 4.10. ERISA........................................................43
Section 4.11. Ownership of Property........................................44
Section 4.12. Insurance....................................................44
Section 4.13. Disclosure...................................................44
Section 4.14. Labor Relations..............................................45
Section 4.15. Status of Certain Agreements and Other Matters...............45
Section 4.16. Subsidiaries.................................................46
ARTICLE V AFFIRMATIVE COVENANTS......................................................46
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Section 5.1. Financial Statements and Other Information...................46
Section 5.2. Notices of Material Events...................................48
Section 5.3. Existence; Conduct of Business...............................49
Section 5.4. Compliance with Laws, Etc....................................49
Section 5.5. Payment of Taxes and Other Obligations.......................49
Section 5.6. Books and Records............................................49
Section 5.7. Visitation, Inspection, Etc..................................50
Section 5.8. Maintenance of Properties; Insurance.........................50
Section 5.9. Use of Proceeds..............................................50
Section 5.10. Additional Subsidiaries......................................50
Section 5.11. Further Assurances...........................................51
ARTICLE VI FINANCIAL COVENANTS........................................................51
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Section 6.1. Funded Debt to EBITDAR Ratio.................................52
Section 6.2. EBITR to Interest and Rents Ratio............................52
Section 6.3. Asset Coverage Ratio.........................................52
Section 6.4. Consolidated Net Worth.......................................52
Section 6.5. Capital Expenditures.........................................52
ARTICLE VII NEGATIVE COVENANTS.........................................................53
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Section 7.1. Indebtedness.................................................53
Section 7.2. Liens........................................................54
Section 7.3. Fundamental Changes..........................................55
Section 7.4. Investments, Loans, Etc......................................56
Section 7.5. Restricted Payments..........................................57
Section 7.6. Sale of Assets...............................................57
Section 7.7. Transactions with Affiliates.................................58
Section 7.8. Restrictive Agreements.......................................58
Section 7.9. Sale and Leaseback Transactions..............................58
Section 7.11. Hedging Transactions.........................................59
Section 7.12. Actions Relating to Indenture and Senior Notes...............59
Section 7.13. Accounting Changes...........................................59
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ARTICLE VIII EVENTS OF DEFAULT........................................................60
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Section 8.1. Events of Default............................................60
ARTICLE IX THE ADMINISTRATIVE AGENT.................................................63
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Section 9.1. Appointment of Administrative Agent..........................63
Section 9.2. Nature of Duties of Administrative Agent.....................63
Section 9.3. Lack of Reliance on the Administrative Agent.................64
Section 9.4. Certain Rights of the Administrative Agent...................64
Section 9.5. Reliance by Administrative Agent.............................64
Section 9.6. The Administrative Agent in its Individual Capacity..........65
Section 9.7. Successor Administrative Agent...............................65
ARTICLE X MISCELLANEOUS............................................................66
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Section 10.1. Notices......................................................66
Section 10.2. Waiver; Amendments...........................................67
Section 10.3. Expenses; Indemnification....................................68
Section 10.4. Successors and Assigns.......................................69
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process...72
Section 10.6. Waiver Of Jury Trial.........................................72
Section 10.7. Right of Setoff..............................................73
Section 10.8. Counterparts; Integration....................................73
Section 10.9. Survival.....................................................73
Section 10.10. Severability.................................................73
Section 10.11. Confidentiality..............................................74
Section 10.12. Interest Rate Limitation.....................................74
EXHIBITS
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Exhibit A-1 Form of Revolving Credit Note
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Guaranty Agreement
Exhibit D Form of Contribution Agreement
Exhibit 2.3 Form of Notice of Borrowing
Exhibit 2.5 Form of Notice of Continuation/Conversion
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SCHEDULES:
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Schedule 1.1-A Applicable Margins and Applicable Percentages
Schedule 1.1-B Mortgaged Non-Retail Properties
Schedule 1.1-C Mortgaged Retail Properties
Schedule 4.1 Subsidiaries Not Qualified or in Good Standing
Schedule 4.5 Litigation and Environmental Matters
Schedule 4.10 ERISA Exceptions
Schedule 4.16 Subsidiaries
Schedule 7.1 Existing Indebtedness
Schedule 7.2 Existing Liens
Schedule 7.4 Existing Investments
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364-DAY REVOLVING CREDIT AGREEMENT
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THIS 364-DAY REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered into as of June 21, 2002, by and among DOLLAR GENERAL CORPORATION, a
Tennessee corporation (the "Borrower"), the several banks and other financial
institutions from time to time party hereto (the "Lenders"), and SUNTRUST BANK,
in its capacities as Administrative Agent (the "Administrative Agent") and
Collateral Agent (the "Collateral Agent") for the Lenders, CREDIT SUISSE FIRST
BOSTON, as Syndication Agent for the Lenders (the "Syndication Agent"), and
KEYBANK NATIONAL ASSOCIATION and U.S. BANK NATIONAL ASSOCIATION, as
Co-Documentation Agents for the Lenders (the "Co-Documentation Agents").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders establish a
$150,000,000 revolving credit facility in favor of the Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments as defined
herein, are willing to establish the requested revolving credit facility in
favor of the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
Section 1.1. Definitions In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Acquisition" shall mean the acquisition by any of the Borrower or its
Subsidiaries of any of the following: (i) the controlling interest in any
Person, (ii) the capital stock or other equity securities or ownership interests
in any Subsidiary not already owned by the Borrower or any of its Subsidiaries,
and (iii) all or substantially all of the assets of any Person or a division,
line of business, or business segment of any Person.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for a
Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR for such
Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve
Percentage.
"Administrative Agent" shall have the meaning assigned to such term in the
opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, such Person. For purposes of this definition,
"Control" shall mean the power, directly or indirectly, either to (i) vote 10%
or more of securities having ordinary voting power for the election of directors
(or persons performing similar functions) of a Person or (ii) direct or cause
the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. The terms
"Controlling", "Controlled by", and "under common Control with" have meanings
correlative thereto.
"Aggregate Commitment Amount" shall mean the amount of the Aggregate
Commitments in effect from time to time. On the Closing Date, the Aggregate
Commitment Amount equals $150,000,000.
"Aggregate Commitments" shall mean at any time, collectively, all
Commitments of all Lenders in effect at such time.
"Agreement" shall mean this 364-Day Revolving Credit Agreement, as the same
may be amended, restated, and supplemented from time to time.
"Applicable Lending Office" shall mean, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated for such Type of Loan in the Administrative Questionnaire submitted
by such Lender or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office through which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, with respect to all Loans outstanding on any
date, the percentage per annum determined by reference to the applicable Debt
Rating in effect on such date with respect to Eurodollar Loans as set forth on
the Pricing Grid. Notwithstanding the above, if (i) the ▇▇▇▇▇'▇ Rating and the
S&P Rating shall fall within different Levels of the Pricing Grid, the lower of
the two different Levels will apply, or (ii) either S&P or ▇▇▇▇▇'▇ shall cease
to have its applicable Debt Rating in effect, then the remaining Debt Rating
shall apply, or (iii) both S&P and ▇▇▇▇▇'▇ shall cease to have an applicable
Debt Rating in effect, then the Borrower and the Administrative Agent shall
negotiate in good faith to amend the Pricing Grid (which amendment shall require
the consent of each of the Lenders) to reflect the unavailability of the Debt
Ratings from such rating agencies, provided, however that, pending the
effectiveness of any such amendment, the applicable Debt Rating for purposes of
determining the Applicable Margin shall be Level VI.. A change in the Applicable
Margin resulting from a change in the Debt Rating shall be effective on the day
on which either ▇▇▇▇▇'▇ or S&P changes its Debt Rating and shall continue until
the day prior to the day that a further change by either ▇▇▇▇▇'▇ or S&P becomes
effective.
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"Applicable Percentage" shall mean, with respect to the Facility Fee, as of
any date, the percentage per annum determined by reference to the applicable
Debt Rating as set forth on the Pricing Grid. Notwithstanding the above, if (i)
the ▇▇▇▇▇'▇ Rating and the S&P Rating shall fall within different Levels of the
Pricing Grid, the lower of the two different Levels will apply, or (ii) either
S&P or ▇▇▇▇▇'▇ shall cease to have its applicable Debt Rating in effect, then
the remaining Debt Rating shall apply, or (iii) both S&P and ▇▇▇▇▇'▇ shall cease
to have an applicable Debt Rating in effect, then the Borrower and the
Administrative Agent shall negotiate in good faith to amend the Pricing Grid
(which amendment shall require the consent of each of the Lenders) to reflect
the unavailability of the Debt Ratings from such rating agencies; provided,
however, that, pending the effectiveness of any such amendment, the applicable
Debt Rating for purposes of determining the Applicable Percentage shall be Level
VI.. A change in the Applicable Percentage resulting from a change in the Debt
Rating shall be effective on the day on which either ▇▇▇▇▇'▇ or S&P changes its
Debt Rating and shall continue until the day prior to the day that a further
change by either ▇▇▇▇▇'▇ or S&P becomes effective.
"Apportioned Amount" shall mean, with respect to any Net Proceeds, an amount
equal to the pro rata share of such Net Proceeds based on the Aggregate
Commitment Amount then in effect under this Agreement and the "Aggregate
Revolving Commitment Amount" then in effect under the 3-Year Credit Agreement.
"Approved Fund" means any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business, that is administered or managed by (i) a Lender, (ii) an Affiliate of
a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender, and that in any case has been approved by the Administrative
Agent hereunder.
"Asset Coverage Ratio" shall mean, as of any date, the ratio of (i) Eligible
Inventory as of such date to (ii) Consolidated Funded Debt as of such date.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4(b)) and accepted by the Administrative Agent, in the
form of Exhibit B attached hereto or any other form approved by the
Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to the
Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%) per annum.
The Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
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"Borrower" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of Loans of the same Type,
made, converted or continued on the same date and, in case of Eurodollar Loans,
as to which a single Interest Period is in effect.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or other
day on which commercial banks in Atlanta, Georgia are authorized or required by
law to close, and (ii) if such day relates to a Borrowing of, a payment or
prepayment of principal or interest on, a conversion of or into, or an Interest
Period for, a Eurodollar Loan or a notice with respect to any of the foregoing,
any day on which dealings in Dollars are carried on in the London interbank
market.
"Capital Expenditures" shall mean, for any period and without duplication,
(i) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP, and (ii) Capital Lease Obligations incurred by
the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations of such
Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (ii) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) acting in concert acquiring beneficial ownership of 30% or more of the
outstanding shares of the voting stock of the Borrower; (iii) during any period
of 12 consecutive calendar months, Continuing Directors shall cease to
constitute a majority of the board of directors of the Borrower, or (iv) any
event or condition shall occur or exist which, pursuant to the terms of any
change of control provision, requires or permits the holder(s) of Indebtedness
of any Loan Party which individually or in the aggregate is equal to or exceeds
$10,000,000 to require that such Indebtedness be redeemed, repurchased,
defeased, prepaid or repaid, in whole or in part, or the maturity of such
Indebtedness to be accelerated in any respect.
"Change in Law" shall mean (i) the adoption of any applicable law, rule or
regulation after the date of this Agreement, (ii) any change in any applicable
law, rule or regulation, or any change in the interpretation or application
thereof, by any Governmental
4
Authority after the date of this Agreement, or (iii) compliance by any Lender
(or its Applicable Lending Office) (or for purposes of Section 2.16(b), by such
Lender's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Closing Date" shall mean the date on which the conditions precedent set
forth in Section 3.1 and Section 3.2 have been satisfied or waived in
----------- -----------
accordance with Section 10.2.
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"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Collateral" shall mean, collectively, the Mortgaged Properties and all
other collateral described from time to time in the Security Documents.
"Collateral Agent" shall mean SunTrust Bank, in its capacity as collateral
agent for the Lenders under the Security Documents.
"Collateral Documents" shall mean, collectively, the Mortgages, the
Environmental Indemnity Agreement, the UCC Financing Statements, the owners'
affidavits in respect of the Mortgaged Properties, and all other instruments,
agreements and documents executed and delivered by any of the Borrower and the
Guarantors pursuant to the requirements of this Agreement, or the Mortgages in
respect of the Collateral, whether pursuant to Section 3.1, Section 5.10,
Section 5.11 or otherwise.
"Commitment" shall mean, with respect to each Lender, the obligation of such
Lender to make Loans to the Borrower in an aggregate principal amount not
exceeding the amount set forth with respect to such Lender on its signature page
to this Agreement, or in the case of a Person becoming a Lender after the
Closing Date, the amount of the assigned "Commitment" as provided in the
Assignment and Acceptance executed by such Person as an assignee, in each case
as the same may be increased or decreased pursuant to the terms hereof.
"Commitment Termination Date" shall mean the earliest of (i) June 20, 2003,
(ii) the date on which the Commitments are terminated pursuant to Section 2.6
and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by
acceleration or otherwise).
"Consolidated Adjusted Funded Debt shall mean, as of any date of
determination for the Borrower and its Subsidiaries on a consolidated basis, the
sum of (i) Consolidated Funded Debt as of such date and, (ii) without
duplication, (A) the present value (determined based on a discount rate of ten
percent (10%) in accordance with discounted present value analytical technology)
as of such date, of all remaining payments due under leases and financing
obligations (excluding capital leases already included in the calculation of
Consolidated Funded Debt), whether for retail stores, distribution centers,
administrative office space, furniture, fixtures, equipment, or other tangible
assets, and (B) all other Off-Balance Sheet Liabilities, in each case determined
on a consolidated basis in accordance with GAAP.
"Consolidated EBITDAR" shall mean, for the Borrower and its Subsidiaries for
any period, an amount equal to the sum of (i) Consolidated EBITR for such
period, and (ii) to the
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extent deducted in determining Consolidated Net Income for such period,
depreciation and amortization for such period, in each case determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITR" shall mean, for the Borrower and its Subsidiaries for
any period, an amount equal to the sum of (i) Consolidated Net Income for such
period, plus (ii) to the extent deducted in determining the Consolidated Net
Income for such period (x) Consolidated Interest Expense, (y) income tax
expense, and (z) Consolidated Rent Expense, in each case determined on a
consolidated basis in accordance with GAAP.
"Consolidated Funded Debt" shall mean, as of any date of determination, all
outstanding Indebtedness of the Borrower and its Subsidiaries on a consolidated
basis (other than in respect of commercial letters of credit and Indebtedness of
the types described in clauses (x) and (xi) of the definition of the term
Indebtedness), including without limitation, all Obligations and all
"Obligations" as such term is defined in the 3-Year Credit Agreement.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period, determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense (net of interest income),
including without limitation, the interest component of any payments in respect
of capital leases capitalized or expensed during such period (whether or not
actually paid during such period, and any program costs incurred in respect of
any accounts receivable securitization or other financing arrangement), plus
(ii) the net amount payable (or minus the net amount receivable) with respect to
Hedging Obligations during such period (whether or not actually paid or received
during such period).
"Consolidated Net Income" shall mean, for any period, the net income or loss
of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (i) the income of any Person (other than the Borrower) in which any
other Person (other than the Borrower or any Subsidiary) owns an equity interest
in excess of 10%, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of the Subsidiaries during
such period, (ii) any extraordinary items of gain or loss, and (iii) the income
or loss of any Person or business accrued prior to the date such Person or
business is included in the results of operations of the Borrower and its
Subsidiaries, in each case as determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination, the
shareholders' equity of the Borrower, as set forth or reflected on the most
recent consolidated balance sheet of the Borrower prepared in accordance with
GAAP, but excluding any redeemable preferred stock.
"Consolidated Rent Expense" shall mean, for the Borrower and its
Subsidiaries for any period, the aggregate amount of all rental payments
(including both minimum and contingent rents) during such period in respect of
all lease agreements and financing obligations (excluding any amounts in respect
of capital leases or financing obligations included in the calculation of
Consolidated Interest Expense for such period), whether for retail stores,
6
distribution centers, administrative office space, furniture, fixtures,
equipment, or other tangible assets.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Contribution Agreement" shall mean that certain Contribution Agreement
dated as of the date of this Agreement executed by the Borrower, the Guarantors,
and the Administrative Agent substantially in the form of Exhibit D, as the same
may be amended, restated or supplemented from time to time.
"Continuing Directors" shall mean, with respect to any period of twelve (12)
consecutive calendar months, any member of the board of directors of the
Borrower who (a) was a member of such board of directors on the first day of
such period or (b) was nominated for election or elected to such board of
directors with the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination or election.
"DGI" shall mean Dollar General Investment, Inc., a Delaware corporation
that is a direct wholly owned Subsidiary of the Borrower, together with its
successors and permitted assigns.
"DGI Loans" shall mean, collectively, the intercompany loans made by DGI to
the Mortgagors (other than the Borrower) from the proceeds of the initial Loans
under the Related Revolving Credit Facilities in an aggregate principal amount
not to exceed $320,000,000 for the purpose of providing funds for refinancing
and replacing the outstanding Indebtedness under the Existing Synthetic Leases
encumbering the Mortgaged Properties, which intercompany loans (i) provide by
their terms that (x) no principal payments on such intercompany loans are to be
made during any time that any Obligations remain outstanding, or any Commitments
remain in effect, under either of the Related Revolving Credit Facilities
without the prior written consent of the Required Lenders, (y) the principal
amounts of such intercompany loans shall be deemed paid and satisfied, on a
dollar-for-dollar basis, in an amount equal to any payments of principal amounts
of the Obligations outstanding under either of the Related Revolving Credit
Facilities made by the respective Mortgagors pursuant to the requirements of any
Guarantees given by such Mortgagors in respect of such Obligations, and (z)
payment of such intercompany loans are subordinated to the prior payment in full
of all Obligations of the Mortgagors under their respective Guarantees given in
respect of the Obligations under the Related Revolving Credit Facilities, on
terms and conditions satisfactory to the Administrative Agent, and (ii) shall
otherwise be on terms and conditions satisfactory to the Administrative Agent.
"Debt Rating" shall mean the ▇▇▇▇▇'▇ Rating and the S&P's Rating, as the
case may be.
"Default" shall mean any condition or event that, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
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"Default Interest" shall have the meaning assigned to such term in Section
2.11(b).
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"Development Authority" shall mean the Industrial Development Authority of
Davidson County.
"Dollar(s)" and the sign "$" shall mean lawful money of the United States of
America.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender; (iii)
an Approved Fund; and (iv) any other Person (other than a natural Person)
approved by the Administrative Agent and unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed). If the consent of the Borrower to an assignment to an
Eligible Assignee is required hereunder, the Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof has actually
been delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
"Eligible Inventory" shall mean inventory of the Borrower and its
Subsidiaries valued at the lower of cost or market, with cost determined using
the retail last-in, first-out method, all as properly reflected on the
Borrower's consolidated balance sheet and otherwise determined in accordance
with GAAP.
"Environmental Indemnity Agreement" shall mean the Hazardous Materials
Indemnity Agreement dated as of June 21, 2002 executed by the Borrower and
certain of the Guarantors in favor of the Collateral Agent and the Lenders, as
the same may be amended, restated and supplemented from time to time.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material, or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or otherwise
(including any liability for damages, costs of environmental investigation and
remediation, costs of administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (i) any actual or alleged violation of
any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or
alleged exposure to any Hazardous Materials, (iv) the Release or threatened
Release of any Hazardous Materials or (v) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
8
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (ii) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iii)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (vii) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Event of Default" shall have the meaning assigned to such term in Article
-------
VIII.
-----
"Excluded Taxes" shall mean with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (i) income or franchise taxes imposed on
(or measured by) its net income by any United States local, state or federal
governmental authority, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its Applicable Lending Office is located, or any
nation within
9
which such jurisdiction is located, or any political subdivision thereof, (ii)
any branch profits taxes imposed by the United States or any similar tax imposed
by any other jurisdiction described in the preceding clause (i), and (iii) in
the case of a Non-U.S. Lender, any withholding tax that (x) is imposed on
amounts payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes
a party to this Agreement, (y) is imposed on amounts payable to such Non-U.S.
Lender at any time that such Non-U.S. Lender designates a new Applicable Lending
Office, other than taxes that have accrued prior to the designation of such new
Applicable Lending Office that are otherwise not Excluded Taxes, and (z) is
attributable to such Non-U.S. Lender's failure to comply with Section 2.18(e).
--------------
"Existing Credit Agreement" shall mean that certain Credit Agreement dated
as of September 2, 1997, by and among the Borrower, the lenders from time to
time party thereto and SunTrust Bank, formerly known as SunTrust Bank,
Nashville, N.A., as agent, as amended and in effect as of the Closing Date.
"Existing Synthetic Leases" shall mean, collectively, (i) the Lease
Agreement, dated as of September 2, 1997, between the Borrower and Atlantic
Financial Group, Ltd., a Texas limited liability partnership ("AFG"), and the
Master Lease Agreement, dated as of September 2, 1997, among the Borrower and
certain of its Subsidiaries, SunTrust Bank, (formerly known as SunTrust Bank,
Atlanta) and AFG, and (ii) the Lease Agreement, dated as of June 11, 1999,
between the Borrower and AFG, and the Master Lease Agreement, dated as of June
11, 1999, between the Borrower and certain of its Subsidiaries, SunTrust Bank,
(formerly known as SunTrust Bank), Atlanta and AFG.
"Facility Fee" shall mean the facility fee described in Section 2.12(b).
----------------
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published by the
Federal Reserve Bank of New York on the next succeeding Business Day or if such
rate is not so published for any Business Day, the Federal Funds Rate for such
day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of March 11, 2002,
executed by SunTrust Capital Markets, Inc. and SunTrust Bank and accepted by the
Borrower.
"Fiscal Quarter" shall mean a fiscal quarter of the Borrower.
"Fiscal Year" shall mean a fiscal year of the Borrower.
"Foreign Subsidiary" shall mean any Subsidiary that is not a U.S.
Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
-----------
10
"Governmental Authority" shall mean the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly and
including any obligation, direct or indirect, of the guarantor (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (ii) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) as an account party in respect of any
letter of credit or letter of guaranty issued in support of such Indebtedness or
obligation; provided, that the term "Guarantee" shall not include endorsements
for collection or deposits in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which Guarantee is made or, if
not so stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith. The term "Guarantee" used as a verb has
a corresponding meaning.
"Guaranty Agreement" shall mean that certain Guaranty Agreement dated as of
the date hereof executed by the Guarantors in favor of the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit C, as
---------
amended, restated, supplemented or otherwise modified from time to time.
"Guarantors" shall mean each U.S. Subsidiary of the Borrower now existing or
hereafter acquired.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Headquarters Property" shall mean the property identified as such on
Schedule 1.1-B attached to this Agreement.
--------------
"Hedging Obligations" of any Person shall mean any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, unwinds, buy backs, reversals,
terminations or assignments of any Hedging Transactions, and
11
(iii) any and all renewals, extensions and modifications of any Hedging
Transactions and any and all substitutions and replacements for any Hedging
Transactions.
"Hedging Transaction" of any Person shall mean any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by such
Person that is a rate swap, basis swap, forward rate transaction, commodity
swap, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collateral transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other financial
measures.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables and other accrued expenses
incurred in the ordinary course of business on terms customary in the trade);
(iv) all obligations of such Person under any conditional sale or other title
retention agreement(s) relating to property acquired by such Person, (v) all
Capital Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of standby letters of credit, acceptances
or similar extensions of credit, (vii) all Guarantees by such Person of any type
of Indebtedness of others described in this definition, (viii) all Indebtedness
of a third party secured by any Lien on property owned by such Person, whether
or not such Indebtedness has been assumed by such Person; provided that the
--------
amount of any Indebtedness of others that constitutes Indebtedness of such
Person solely by reason of this clause (viii) shall not for purposes of this
Agreement exceed the greater of the book value or the fair market value of the
properties or assets subject to such Lien, (ix) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any capital stock or partner, member or other ownership interests of such
Person or any Subsidiary or other Affiliate of such Person, in each case where
the holder of such capital stock or member or other ownership interests may
require such purchase, redemption, retirement or other acquisition to be
effected prior to the Commitment Termination Date, (x) all Off-Balance Sheet
Liabilities of such Person, and (xi) all Hedging Obligations of such Person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indenture" shall mean, collectively, that certain Indenture, dated as of
June 21, 2001, by and among the Borrower, as issuer, the Guarantors, as
Guarantors, and First Union National Bank, as trustee, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed or extended as permitted herein.
"Information Memorandum" shall mean the Confidential Information Memorandum
dated May 2002 relating to the Borrower and the transactions contemplated by
this Agreement and the other Loan Documents.
"Interest Period" shall mean with respect to any Eurodollar Borrowing, a
period of one, two, three or six months as the Borrower may elect; provided,
--------
that:
12
(i) the initial Interest Period for such Borrowing shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of
another Type), and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period shall end on the last
Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment Termination Date.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement.
"Level" shall mean the respective category assigned to each applicable Debt
Rating of S&P and Moody's as set forth on the Pricing Grid, being Levels I
through VI.
"LIBOR" shall mean, for any applicable Interest Period with respect to any
Eurodollar Loan, the British Bankers' Association Interest Settlement Rate per
annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow ▇▇▇▇▇ Market
Services (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's interest
settlement rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or, if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
---------
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien (statutory
or otherwise), charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of the foregoing
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).
13
"Loan Documents" shall mean, collectively, this Agreement, the Notes (if
any), the Security Documents, the Post-Closing Agreement, all Notices of
Borrowing, all Notices of Conversion/Continuation, and any and all other
instruments, agreements, documents and writings executed in connection with any
of the foregoing.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean, collectively, the loans made by the Lenders to the
Borrower under the Commitments, which may either be Base Rate Loans or
Eurodollar Loans.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the results
of operations, financial condition or assets of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform
their respective obligations under the Loan Documents, (iii) the rights and
remedies of the Administrative Agent or the Lenders under any of the Loan
Documents, or (iv) the legality, validity or enforceability of any of the Loan
Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans) of
any one or more of the Borrower and the Subsidiaries in an aggregate principal
amount exceeding $20,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of any Hedging Obligation at any time shall be the Net
▇▇▇▇-to-Market Exposure of such Hedging Obligation at such time.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc and its successors.
"▇▇▇▇▇'▇ Rating" shall mean, at any time, the rating assigned by Moody's to
the Borrower's senior unsecured long-term, non-credit enhanced debt at such time
or, if such rating is not then available, Moody's long-term unsecured debt
issuer rating of the Borrower then in effect.
"Mortgaged Properties" shall mean, collectively, the Mortgaged Retail
Properties and the Mortgaged Non-Retail Properties.
"Mortgaged Non-Retail Properties" shall mean, collectively, the properties
described on Schedule 1.1-B attached to this Agreement, including without
---------------
limitation, all buildings, improvements, fixtures and equipment installed or
located thereon.
"Mortgaged Retail Properties" shall mean, collectively, the properties
described on Schedule 1.1-C attached to this Agreement, including without
---------------
limitation, all buildings, improvements, fixtures and equipment installed or
located thereon.
"Mortgages" shall mean, collectively, the first-priority mortgages, deeds of
trust, deeds to secure debt and related security agreements and assignments of
leases and rents in
14
respect of the Mortgaged Properties given by certain of the
Loan Parties in favor of the Collateral Agent to secure the Secured Obligations.
"Mortgagors" shall mean, collectively, each of the Loan Parties that owns
(or, in the case of the Headquarters Property, leases from the Development
Authority) one or more of the Mortgaged Properties.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Net ▇▇▇▇-to-Market Exposure" of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
Hedging Obligation. "Unrealized losses" shall mean the fair market value of the
cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction was to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of such date of determination).
"Net Proceeds" means, with respect to any Prepayment Event, (a) the cash
proceeds received by the Borrower or any of its Subsidiaries in respect of such
Prepayment Event, including (i) any cash received in respect of any non-cash
proceeds, but only as and when received, and (ii) in the case of a casualty or
condemnation event, proceeds in excess of $250,000, in each case net of (b) the
sum of (A) all reasonable and customary fees and out-of-pocket expenses paid by
the Borrower and the other Loan Parties to third parties (other than Affiliates)
in connection with such Prepayment Event, and (B) in the case of a sale,
transfer or other disposition of any Mortgaged Property, (x) the amount of all
taxes (other than income taxes) and all income taxes paid (or reasonably
estimated to be payable) by the Borrower and its Subsidiaries as a consequence
thereof (y) the amount of all payments required to be made by the Borrower and
its Subsidiaries to repay Indebtedness (other than the Loans ) secured by a Lien
thereon permitted by Section 7.2 and required to be repaid as a result of such
-----------
Prepayment Event, and (z) the amount of any reserves established by the Borrower
and its Subsidiaries in accordance with GAAP to fund contingent liabilities
reasonably estimated to be payable, and that are directly attributable to such
Prepayment Event, provided that, at such time or times as such contingent
--------
liabilities cease to exist, in whole or in part, or the Borrower or such
Subsidiary is otherwise required or permitted, in accordance with GAAP, to
release such reserves, in whole or in part, the amount of such reserves affected
by such cessation or release (not to exceed the aggregate cash proceeds
otherwise received in respect of such Prepayment Event) shall constitute Net
Proceeds at such time.
"Non-U.S. Lender" shall mean any Lender that is not a United States person
under Section 7701(a)(3) of the Code.
"Notes" shall mean, collectively, the promissory notes of the Borrower
payable to the order of the requesting Lenders in the respective principal
amounts of such Lenders' Commitments, each substantially in the form of Exhibit
-------
A.
--
15
"Notice of Conversion/Continuation" shall have the meaning assigned to such
term in Section 2.5(b).
--------------
"Notice of Borrowing" shall have the meaning assigned to such term in
Section 2.3.
------------
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent and all Lenders pursuant to or in connection with this
Agreement, the Notes or any other Loan Document, including without limitation,
all principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs
and expenses (including all fees and expenses of counsel to the Administrative
Agent and any Lender incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder, and all
Hedging Obligations owing to the Administrative Agent, any Lender or any of
their Affiliates incurred in respect of any interest accruing on the Loans, and
all obligations and liabilities incurred in connection with collecting and
enforcing the foregoing, together with all renewals, extensions, modifications
or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any obligations
created through asset securitization financing programs arranged for such
Person, (ii) any liabilities of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet of such
Person, (iii) any Synthetic Lease Obligations, and (iv) any obligations arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
balance sheet of such Person, in each case in an amount that would result if
such transaction had been treated as a borrowing provided that any such
obligation described in the preceding clause (ii) or this clause (iv) shall not
include any liability pursuant to an obligation classified as an operating lease
for purposes of GAAP.
"Operating Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent and other amounts under any lease (or other arrangements
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as operating
leases on a balance sheet of such Person under GAAP.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as amended
from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement, any Note, or any other Loan
Document.
"Participant" shall have the meaning assigned to such term in Section
-------
10.4(d).
-------
16
"Payment Office" shall mean the office of the Administrative Agent located
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as
to which the Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes or special assessments not yet due
or which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liabilities to
insurance carriers under insurance or self-insurance arrangements;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
---------
securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States), in each case maturing within one year from the date of
acquisition thereof;
17
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or ▇▇▇▇▇'▇ and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Post-Closing Agreement" shall mean the Agreement Regarding Post-Closing
Matters dated as of June 21, 2002, among the Loan Parties and the Administrative
Agent, as the same may be amended, restated and supplemented from time to time.
"Prepayment Event" shall mean (a) any sale, transfer or other disposition of
a Mortgaged Property (including pursuant to a sale and leaseback transaction),
(b) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding (or settlement in
respect thereof) of, any Mortgaged Property (but only to the extent that the Net
Proceeds therefrom have not been applied to repair, restore or replace such
property within 180 days of the later of the date of such casualty or the
receipt of such Net Proceeds after such event), (c) any issuance by the Borrower
or any Subsidiary of the Borrower of any equity or debt securities, and (d) any
making of principal payments to DGI in respect of the DGI Loans.
"Pricing Grid" shall mean the table of applicable Debt Ratings and
corresponding Applicable Margins and Applicable Percentages set forth as
Schedule 1.1-A attached to this Agreement.
--------------
"Pro Rata Share" shall mean, with respect to any Commitment of any Lender at
any time, a percentage, the numerator of which shall be such Lender's Commitment
(or if such Commitments have been terminated or expired or the Loans have been
declared to be due and payable, such Lender's Revolving Credit Exposure), and
the denominator of which shall be the
18
sum of such Commitments of all Lenders (or if such Commitments have been
terminated or expired or the Loans have been declared to be due and payable, all
Revolving Credit Exposure of all Lenders).
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"Related Revolving Credit Facilities" shall mean, collectively, the
revolving credit facilities made available to the Borrower pursuant to this
Agreement and the 3-Year Credit Agreement.
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the
environment (including ambient air, surface water, groundwater, land surface or
subsurface strata) or within any building, structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more than 50% of
the aggregate outstanding Commitments at such time or, if no Commitments are
then outstanding, then Lenders having more than 50% of the Revolving Credit
Exposures of all Lenders.
"Requirement of Law" for any Person shall mean the articles or certificate
of incorporation and bylaws, partnership agreement, certificate of limited
partnership, articles of organization, limited liability company operating
and/or management agreement, or other organizational or governing documents of
such Person, and any law, treaty, rule or regulations, or determination of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" shall mean any of the president, the chief executive
officer, the chief operating officer, the chief financial officer, the treasurer
or a vice president of the Borrower or such other representative of the Borrower
as may be designated in writing by any one of the foregoing with the consent of
the Administrative Agent; and, with respect to the financial covenants only, the
chief financial officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning assigned to such term in Section
-------
7.5.
---
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Loans.
"S&P" shall mean Standard & Poor's and its successors.
19
"S&P Rating" shall mean, at any time, the rating assigned by S&P to the
Borrower's senior unsecured long-term, non-credit enhanced debt at such time or,
if such rating is not then available, S&P's issuer credit rating of the Borrower
then in effect.
"SEC Investigation" shall mean the investigation by the Securities and
Exchange Commission into the circumstances giving rise to the Borrower's
restatement of its audited financial statements for its Fiscal Years 1998 and
1999 and its unaudited financial statements and information released prior to
April 30, 2001, for its Fiscal Year 2000, and all related governmental
investigations and regulatory actions and proceedings.
"Secured Obligations" shall mean, collectively, the Obligations as provided
in this Agreement, the "Obligations" as defined in the 3-Year Credit Agreement,
and all other amounts described in the Collateral Documents as being secured
thereby.
"Security Documents" shall mean, collectively, the Guaranty Agreement, the
Contribution Agreement, and the Collateral Documents.
"Senior Notes" shall mean, collectively, the Borrower's 8 5/8% Notes due
June 15, 2010, in the aggregate principal amount of $200,000,000, issued
pursuant to the Indenture.
"Shareholder Settlements" shall mean the aggregate amounts required to be
paid by the Borrower pursuant to any settlement arrangement(s), judgment(s),
decree(s), and/or order(s) agreed by or entered against the Borrower in respect
of shareholder litigation and related proceedings arising out of the Borrower's
restatement of its audited financial statements for its Fiscal Years 1998 and
1999 and its unaudited financial statements and information released prior to
April 30, 2001, for its Fiscal Year 2000.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (ii) that is, as
of such date, otherwise controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"Synthetic Lease" means a lease transaction under which (i) the lease will
be treated as an "operating lease" by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the lessee will be
entitled to various tax and other benefits ordinarily available to owners (as
opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person, the
sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases that are
20
attributable to principal and, without duplication, (ii) all rental and purchase
price payment obligations of such Person under such Synthetic Leases assuming
such Person exercises the option to purchase the lease property at the end of
the lease term.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"3-Year Credit Agreement" shall mean that certain 3-Year Revolving Credit
Agreement dated as of June , 2002, by and among the Borrower, the lenders from
time to time party thereto and SunTrust Bank, as administrative agent, as the
same may be amended, restated, and supplemented from time to time.
"Type", when used in reference to a Loan or Borrowing, refers to whether the
rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Base Rate.
"UCC Financing Statements" shall mean, collectively, the financing
statements (including those describing fixtures on the Mortgaged Properties) to
be filed in respect of the Collateral pursuant to the requirements of the
Uniform Commercial Code of the various states where necessary or advisable under
applicable law in order to perfect a lien on and security interest in such
Collateral in favor of the Collateral Agent, together with all amendments
thereto and assignments thereof.
"U.S. Subsidiary" shall mean a Subsidiary that is a United States person
under Section 7701(a)(3) of the Code.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For purposes of this
---------------------------------------
Agreement, Loans may be classified and referred to by Type (e.g., a "Eurodollar
Loan" or "Base Rate Loan"). Borrowings also may be classified and referred to by
Type (e.g., "Eurodollar Borrowing").
Section 1.3. Accounting Terms and Determination. Unless otherwise defined or
----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the most recent
audited consolidated financial statements of the Borrower delivered pursuant to
Section 5.1(a); provided, that if the Borrower notifies the Administrative Agent
----------- --------
that the Borrower wishes to amend any covenant in Article VI to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article VI for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either
21
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Section 1.4. Terms Generally. The definitions of terms herein shall apply
----------------
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement, and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities.
------------------------------------
Subject to and upon the terms and conditions set forth herein, the Lenders
hereby establish in favor of the Borrower a revolving credit facility pursuant
to which each Lender severally agrees (to the extent of such Lender's
Commitment) to make Loans to the Borrower in accordance with Section 2.2,
provided, that in no event shall the aggregate principal amount of all
outstanding Loans exceed at any time the Aggregate Commitment Amount from time
to time in effect.
Section 2.2. Loans.
-----
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make Loans to the Borrower, from time to time during the Availability
Period, in an aggregate principal amount outstanding at any time that will not
result in (i) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (ii) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Commitment Amount. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Loans in
accordance with the terms and conditions of this Agreement; provided, that the
--------
Borrower may not borrow or reborrow any Loans should there exist a Default or
Event of Default (other than a reborrowing (x) consisting solely of a
continuation of an existing Eurodollar Borrowing for a
22
new Interest Period of one (1) month at a time when there exists a Default (but
not an Event of Default), or (y) consisting solely of a conversion of an
existing Eurodollar Borrowing to a Base Rate Borrowing).
Section 2.3. Procedure for Borrowings.
-------------------------
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing substantially
in the form of Exhibit 2.3 attached hereto (a "Notice of Borrowing") (x) prior
to 12:00 noon (Atlanta, Georgia time) on the requested date of each Base Rate
Borrowing and (y) prior to 12:00 noon (Atlanta, Georgia time) at least three (3)
Business Days prior to the requested date of each Eurodollar Borrowing. Each
Notice of Borrowing shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Borrowing, (ii) the date of such Borrowing (which shall
be a Business Day), (iii) the Type of such Loan comprising such Borrowing and
(iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest
Period applicable thereto (subject to the provisions of the definition of
Interest Period). Each Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. The aggregate principal amount of
each such Eurodollar Borrowing shall be not less than $10,000,000 or a larger
multiple of $500,000, and the aggregate principal amount of each such Base Rate
Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000. At
no time shall the total number of Eurodollar Borrowings outstanding at any time
exceed twelve. Promptly following the receipt of a Notice of Borrowing in
accordance herewith, the Administrative Agent shall advise each Lender of the
details thereof and the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.4. Funding of Borrowings.
---------------------
(a) Each Lender will make available each Loan to be made by it hereunder on
the proposed date thereof by wire transfer in immediately available funds by
1:00 p.m.(Atlanta, Georgia time) to the Administrative Agent at the Payment
Office. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts that it receives, in like funds by the close
of business on such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated in writing by the Borrower to
the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender
prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing in
which such Lender is participating that such Lender will not make available to
the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate for up
to two (2) days and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
23
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(c) All Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares. No Lender shall be responsible for any default by
any other Lender in its obligations hereunder, and each Lender shall be
obligated to make its Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
Section 2.5. Interest Elections.
------------------
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall give
the Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing (a "Notice of Conversion/Continuation")
that is to be converted or continued, as the case may be, (x) prior to 12:00
noon (Atlanta, Georgia time) on the requested date of a conversion into a Base
Rate Borrowing, and (y) prior to 12:00 noon (Atlanta, Georgia time) three (3)
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing), (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing,
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of "Interest Period." If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month. The principal amount of any resulting Borrowing
shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base
Rate Borrowings set forth in Section 2.3.
------------
24
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion / Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if an Event of Default exists, unless the Administrative
Agent and each of the Lenders shall have otherwise consented in writing. The
Borrower will pay any amounts due under Section 2.17 if Eurodollar Loans are
converted on a day that is not the last day of an Interest Period for such
Loans.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.6. Optional Reduction and Termination of Commitments.
-------------------------------------------------
(a) Unless previously terminated, all Commitments shall terminate on the
Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Commitments in part or terminate the Aggregate Commitments in whole; provided,
---------
that (i) any partial reduction shall apply to reduce proportionately and
permanently the Commitment of each Lender, (ii) any partial reduction pursuant
to this Section 2.6 shall be in an amount of at least $10,000,000 and any larger
-----------
multiple of $500,000, and (iii) no such reduction shall be permitted which would
reduce the Aggregate Commitments to an amount less than the outstanding
Revolving Credit Exposures of all Lenders.
Section 2.7. Repayment of Loans.
------------------
The outstanding principal amount of all Loans shall be due and payable
(together with accrued and unpaid interest thereon) on the Commitment
Termination Date.
Section 2.8. Evidence of Indebtedness.
------------------------
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Lender from
time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Commitment of each
Lender, (ii) the amount of each Loan made hereunder by each Lender, the Type
thereof and the Interest Period applicable thereto, (iii) the date of each
continuation thereof pursuant to Section 2.5, (iv) the date of each conversion
------------
of all or a portion thereof to another Type pursuant to Section 2.5, (v) the
-------------
date and amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder in respect of such Loans,
and (vi) both the date and amount of any sum received by the Administrative
Agent
25
hereunder from the Borrower in respect of the Loans and each Lender's share
thereof. The entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded
subject to manifest error; provided, that the failure or delay of any Lender or
the Administrative Agent in maintaining or making entries into any such record
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued interest) of such
Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender at any time, the Borrower agrees that it
will execute and deliver to such Lender a Note payable to the order of such
Lender evidencing such Lender's Loans.
Section 2.9. Optional Prepayments.
--------------------
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, without premium or penalty, by giving
irrevocable written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 12:00 noon (Atlanta, Georgia time) not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of any prepayment
of any Base Rate Borrowing, 12:00 noon (Atlanta, Georgia time) on the date of
such prepayment. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall be due and payable no
later than one (1) Business Day after the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.11(c); provided, that if a Eurodollar Borrowing is
---------------- ---------
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
-------
2.17. Each partial prepayment of any Loan shall be in an amount that would be
----
permitted in the case of an advance of a Borrowing of the same Type pursuant to
Section 2.3. Each prepayment of a Borrowing shall be applied ratably to the
-----------
Loans comprising such Borrowing.
Section 2.10. Mandatory Prepayments and Commitment Reductions.
-----------------------------------------------
(a) If at any time the aggregate Revolving Credit Exposures of all Lenders
exceed the Aggregate Commitment Amount at such time, the Borrower shall
immediately prepay Loans in an aggregate amount equal to such excess.
(b) Subject to Section 2.10(f), in the event and on each occasion that any
Net Proceeds are received by or on behalf of the Borrower or any Subsidiary in
respect of any Prepayment Event of any type described in clause (a) or clause
(b) of the definition of the term "Prepayment Event", the Borrower shall, within
five Business Days after such Net Proceeds are received, prepay Loans in an
aggregate amount equal to the Apportioned Amount of such
26
Net Proceeds; provided, however, that (i) in the case of a "Prepayment Event" of
-------- -------
the type described in clause (a) of the definition of the term "Prepayment
Event" with respect to Mortgaged Retail Properties, if the Borrower shall
deliver, within such five Business Days, to the Administrative Agent a
certificate of the Borrower to the effect that the Borrower and its Subsidiaries
intend to apply the Net Proceeds from such event (or a portion thereof as
specified in such certificate) within 180 days after receipt of such Net
Proceeds, to purchase a new Mortgaged Retail Property of equal or greater value
to replace such Mortgaged Retail Property in compliance with the requirements of
Section 5.11(c) and certifying that no Default or Event of Default has occurred
---------------
and is then continuing or (ii) in the case of a "Prepayment Event" of the type
described in clause (b) of the definition of the term "Prepayment Event," if the
Borrower shall deliver, within such five Business Days, to the Administrative
Agent a certificate of the Borrower to the effect that the Borrower and its
Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof as specified in such certificate), within 180 days after receipt of such
Net Proceeds, to repair or replace all or a portion of the Mortgaged Property
affected thereby and certifying that no Default or Event of Default has occurred
and is then continuing, then in each case no Prepayment shall be required
pursuant to this Section 2.10(b) in respect of the Net Proceeds from such
----------------
Prepayment Event (or the portion of such Net Proceeds specified in such
certificate, if applicable), provided, however, that if by the end of any such
-------- -------
180-day period described in the preceding clauses (i) and (ii), (x) any such Net
Proceeds therefrom have not been so applied, prepayment shall be required at
such time in an amount equal to such Net Proceeds that have not been so applied,
and (y) in the case of any proposed purchase of a new Mortgaged Retail Property,
the Borrower shall have failed to satisfy the requirements of Section 5.11(c) in
---------------
respect of such new Mortgaged Retail Property within such 180 day period,
prepayment shall be required at such time in an amount equal to the Apportioned
Amount of the Net Proceeds initially received by the Borrower or any Subsidiary.
(c) Subject to Section 2.10(f), in the event and on each occasion that any
---------------------------
Net Proceeds are received by or on behalf of the Borrower or any Subsidiary in
respect of any Prepayment Event of the type described in clause (c) of the
definition of the term "Prepayment Event", the Borrower shall, within two
Business Days after such Net Proceeds are received, prepay Loans) in an
aggregate amount equal to, fifty percent (50%) of the Apportioned Amount of such
Net Proceeds; provided, however, the Borrower shall not be required to make
-------- -------
aggregate prepayments pursuant to this Section 2.10(c) which, when aggregated
with the maximum amount of all prepayments required to be made by the Borrower
pursuant to Section 2.12(c) of the 3-Year Credit Agreement, exceed $100,000,000.
--------------
(d) The Borrower agrees to pay all accrued and unpaid interest on all
amounts prepaid pursuant to the requirements of this Section 2.10, together with
------------
any amounts due in respect of such prepayment pursuant to Section 2.17. Each
-------------
prepayment to be applied under this Agreement shall be applied ratably first to
the Base Rate Loans to the full extent thereof, and thereafter to Eurodollar
Loans to the full extent thereof. All payments pursuant to this Section 2.10 and
------------
Section 2.12 of the 3-Year Credit Agreement shall be applied on a pro rata basis
between such Related Revolving Credit Facilities.
(e) The Borrower shall give written notice (or telephonic notice promptly
confirmed in writing) of any prepayment required by this Section 2.10 to the
------------
Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 12:00 noon (Atlanta, Georgia time) not less than three
Business Days prior to the date of any prepayment, and (ii) in the case of
prepayment of any Base Rate Borrowing, 12:00 noon
27
(Atlanta, Georgia time) not less than one Business Day prior to the date of such
prepayment. Each such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
share of any such prepayment. If such notice is given, the aggregate amounts
specified in such notice shall be due and payable on the date designated in such
notice, together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.11(c); provided, that if any Eurodollar Borrowing is
--------------
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
-------
2.17.
----
(f) Immediately upon the occurrence of any Prepayment Event, the Aggregate
Commitments of the Lenders shall automatically be reduced, on a pro rata basis,
in an amount equal to the maximum aggregate prepayments required to be made
pursuant to this Section 2.10 in respect of such Prepayment Event, or that would
be required to be made in respect of such Prepayment Event pursuant to this
Section 2.10 if there were Loans outstanding at such time in excess of such
-------------
maximum required amount; provided that no prepayment below the then reduced
--------
amount of the Aggregate Commitments shall be required to the extent that,
immediately after giving effect to the reduction of the Aggregate Commitments
pursuant to this Section 2.10(f), no Default or Event of Default shall have
----------------
occurred or then be continuing and all other conditions for Borrowing as set
forth in Section 3.2 shall be satisfied so as to entitle the Borrower to borrow
-----------
at such time at least $1 under the Aggregate Commitments in accordance with the
terms hereof..
Section 2.11. Interest on Loans.
-----------------
(a) The Borrower shall pay interest (i) on each Base Rate Loan at the Base
Rate in effect from time to time, and (ii) on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time with
respect to such Base Rate Loan or Eurodollar Loan, as the case may be.
(b) While an Event of Default exists or after acceleration, unless otherwise
agreed by the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable
hereunder for such Eurodollar Loans for the then-current Interest Period, plus
an additional 2% per annum until the last day of such Interest Period, and
thereafter, and with respect to all Base Rate Loans and all other Obligations
hereunder (other than Loans), at the rate otherwise applicable hereunder for
Base Rate Loans, plus an additional 2% per annum.
(c) Interest on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Commitment Termination Date. Interest on all outstanding Eurodollar
Loans shall be payable on the last day of each Interest Period
28
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months, on each day which occurs every three months,
after the initial date of such Interest Period, and on the Commitment
Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the amount
repaid or prepaid) thereof. All Default Interest shall be payable on demand.
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder and shall promptly notify the Borrower and the Lenders of
such rate in writing (or by telephone, promptly confirmed in writing). Any such
determination shall be conclusive and binding for all purposes, absent manifest
error.
Section 2.12. Fees.
----
(a) The Borrower shall pay to the Administrative Agent for its own account
fees in the amounts and at the times previously agreed upon by the Borrower and
the Administrative Agent.
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee (the "Facility Fee") which shall accrue at the
Applicable Percentage (determined daily in accordance with the Pricing Grid) on
the daily amount of the total Commitment (whether used or unused) of such Lender
during the Availability Period; provided, that if any Revolving Credit Exposure
remains outstanding after the Commitment Termination Date, then the Facility Fee
shall continue to accrue on the daily amount of such Revolving Credit Exposure
from and after the Commitment Termination Date to the date that all Revolving
Credit Exposure has been paid in full.
(c) Accrued fees shall be payable quarterly in arrears on the last day of
each March, June, September and December, commencing on June 30, 2002 and on the
Commitment Termination Date (and if later, the date the Loans shall be repaid in
their entirety); provided, that any Facility Fees accruing after the Commitment
Termination Date shall be payable on demand.
Section 2.13. Computation of Interest and Fees.
--------------------------------
All computations of interest and fees hereunder shall be made on the basis
of a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed), except that,
with respect to Base Rate Loans, interest based on the prime lending rate
hereunder shall be computed on the basis of a year of 365 days (or 366 days in a
leap year) and paid for the actual number of days elapsed (including the first
day but excluding the last day). Each determination by the Administrative Agent
of an interest amount or fee hereunder shall be made in good faith and, except
for manifest error, shall be final, conclusive and binding for all purposes.
Section 2.14. Inability to Determine Interest Rates.
---------------------------------------
If prior to the commencement of any Interest Period for any Eurodollar
Borrowing,
29
(a) the Administrative Agent shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that, by reason of circumstances
affecting the relevant interbank market, adequate means do not exist for
ascertaining LIBOR for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Adjusted LIBO Rate does not adequately and fairly reflect the
cost to such Lenders (or Lender, as the case may be) of making, funding or
maintaining their (or its, as the case may be) Eurodollar Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) and a summary of the basis for such determination
to the Borrower and to the Lenders as soon as practicable thereafter. Until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Loans or to continue or convert outstanding Loans
as or into Eurodollar Loans shall be suspended, and (ii) all such affected
Eurodollar Loans shall be converted into Base Rate Loans on the last day of the
then current Interest Period applicable thereto unless the Borrower prepays such
Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, then such Borrowing shall be made as a Base
Rate Borrowing.
Section 2.15. Illegality.
----------
If any Change in Law shall make it unlawful or impossible for any Lender to
make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice
thereof to the Borrower and the other Lenders, whereupon until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar
Borrowing, such Lender's Loan shall be made as a Base Rate Loan as part of the
same Borrowing for the same Interest Period and if the affected Eurodollar Loan
is then outstanding, such Loan shall be converted to a Base Rate Loan on the
last day of the then current Interest Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to maintain such Loan to such date or
within such earlier period as required by law. Notwithstanding the foregoing,
the affected Lender shall, prior to giving such notice to the Administrative
Agent, designate a different Applicable Lending Office if such designation would
avoid the need for giving such notice and if such designation would not
otherwise be disadvantageous to such Lender in the good faith exercise of its
discretion.
Section 2.16. Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of the
Adjusted LIBO
30
Rate hereunder against assets of, deposits with or for the account of, or credit
extended by, any Lender; or
(ii) impose on any Lender or the eurodollar interbank market any other
condition affecting this Agreement or any Eurodollar Loans made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
reduce the amount received or receivable by such Lender hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender, within five Business Days after the date
of such notice and demand, additional amount or amounts sufficient to compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's capital (or on the
capital of such Lender's holding company) as a consequence of its obligations
hereunder to a level below that which such Lender or such Lender's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's policies or the policies of such Lender's holding
company with respect to capital adequacy) then, from time to time, within five
(5) Business Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall pay to
such Lender such additional amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary
to compensate such Lender or such Lender's holding company, as the case may be,
specified in paragraph (a) or (b) of this Section, prepared in good faith and
accompanied by a statement describing in reasonable detail the basis for and
calculation of such increased cost, shall be delivered to the Borrower (with a
copy to the Administrative Agent) at the time of such Lender's demand therefor
and shall be conclusive, absent manifest error.
(d) Subject to Section 2.19(f), failure or delay on the part of any Lender
----------------
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation.
Section 2.17. Funding Indemnity.
------------------
In the event of (i) the payment of any principal of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto (including as a
result of an Event of Default), (ii) the conversion or continuation of a
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, or (iii) the failure by the Borrower to borrow, prepay, convert or
continue any Eurodollar Loan on the date specified in any applicable notice
(regardless of whether such notice is withdrawn or revoked) then, in any such
event, the Borrower shall compensate each Lender, within five (5) Business Days
after written demand from such Lender, for any loss, cost or expense
attributable to such event. Such compensation shall not include the Applicable
Margin, but without limiting the foregoing, shall include an amount equal to the
31
excess, if any, of (x) the amount of interest that would have otherwise accrued
on the principal amount of such Eurodollar Loan if such event had not occurred
at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from
the date of such event to the last day of the then current Interest Period
therefor (or in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan) (excluding any
Applicable Margin) less (y) the amount of interest (as reasonably determined by
such Lender) that would accrue on the principal amount of such Loan for the same
period if the Adjusted LIBO Rate were set on the date such Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Loan, provided that such Lender shall have delivered to the
--------
Borrower a certificate setting forth in reasonable detail its calculation as to
any additional amount payable under this Section 2.17 submitted to the Borrower
------------
by any Lender (with a copy to the Administrative Agent) shall be conclusive,
absent manifest error.
Section 2.18. Taxes.
-----
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable or attributable to
additional sums payable under this Section) the Administrative Agent or any
Lender (as the case may be) shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions, and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) The Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within ten (10) Business Days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes imposed or asserted by any Governmental
Authority paid where due by the Administrative Agent or such Lender, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment, or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
32
(e) Any Non-U.S. Lender that is entitled to an exemption from or reduction
of withholding tax under the Code or any treaty to which the United States is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Non-U.S. Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Non-U.S. Lender's conduct of a trade or business in the United States,
(ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Non-U.S. Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest, (iii) Internal Revenue Service Form W-8
BEN, or any successor form prescribed by the Internal Revenue Service, together
with a certificate (A) establishing that the payment to the Non-U.S. Lender
qualifies as "portfolio interest" exempt from U.S. withholding tax under Code
section 871(h) or 881(c), and (B) stating that (1) the Non-U.S. Lender is not a
bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Non-U.S. Lender, a loan
agreement entered into in the ordinary course of its trade or business, within
the meaning of that section, (2) the Non-U.S. Lender is not a 10% shareholder of
the Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B), and
(3) the Non-U.S. Lender is not a controlled foreign corporation that is related
to the Borrower within the meaning of Code section 881(c)(3)(C), or (iv) such
other Internal Revenue Service forms as may be applicable to the Non-U.S.
Lender, including Forms W-8 IMY or W-8 EXP. Each such Non-U.S. Lender shall
deliver to the Borrower and the Administrative Agent such forms on or before the
date that it becomes a party to this Agreement (or in the case of a Participant,
on or before the date such Participant purchases the related participation). In
addition, each such Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each such Non-U.S. Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
(f) If the Administrative Agent or any Lender receives a refund in respect
of Taxes for which the Borrower has made additional payments pursuant to this
Section 2.18, the Administrative Agent or Lender, as the case may be, shall
-------------
promptly pay such refund (together with any interest with respect thereto
received from the relevant Governmental Authority) to the Borrower (but only to
the extent of additional payments actually made by the Borrower pursuant to this
Section 2.18 with respect to the Indemnified Taxes or Other Taxes giving rise to
------------
such refund), net of all out-of-pocket expenses of the Administrative Agent or
applicable Lender, as the case may be, with respect thereto, provided, that the
--------
Borrower agrees promptly to return such refund (together with any interest and
penalties (other than penalties imposed on the Administrative Agent, Issuing
Bank, or Applicable Lender, as the case may be, in respect of a filing
determined by the relevant Governmental Authority to have been made by such
Person in bad faith and without the consent or approval of the Borrower) with
respect thereto due to the
33
relevant Governmental Authority) (free of all Indemnified Taxes or Other Taxes)
to the Administrative Agent or the applicable Lender, as the case may be, upon
receipt of a notice that such refund is required to be repaid to the relevant
Governmental Authority. Notwithstanding anything to the contrary contained in
this Section 2.18(f), none of the Administrative Agent or the Lenders shall have
--------------
any obligation to disclose to the Borrower any of such Person's books, records,
tax filings or any other information relating to its Taxes that it deems
confidential.
Section 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
------------------------------------------------------------
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or of amounts payable under Section 2.16,
-------------
2.17 or 2.18, or otherwise) prior to 1:00 p.m. (Atlanta, Georgia time), on the
------------
date when due, in immediately available funds, free and clear of any defenses,
rights of set-off, counterclaim, or withholding or deduction of taxes. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except that
payments pursuant to Sections 2.16, 2.17 and 2.18 and 10.3 shall be made
------------------------------- ----
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided,
---------
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this
34
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount or amounts due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
then-current banking industry practices on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.4(b), 2.19(d), or 10.3(d), then the Administrative Agent
-------------- ------- -------
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
(f) The Borrower shall not be required to compensate or indemnify a Lender
pursuant to Sections 2.16, 2.17 or 2.18 for any increased costs loss, cost or
any other expense incurred more than one year prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
loss, cost or any other expense and of such Lender's intention to claim
compensation therefore; provided further that, if a Change in Law giving rise to
-------- ------
such increased costs loss, cost or any other expense is retroactive, then the
one year period referred to above shall be extended to include the period of
retroactive effect thereof.
Section 2.20. Mitigation of Obligations.
-------------------------
If any Lender requests compensation under Section 2.16, or if the Borrower
------------
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.18, then such
-------------
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the good
faith judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.16 or Section 2.18, as the
------------ ------------
case may be, in the future, and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
35
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
-----------------------------
Section 3.1. Conditions To Effectiveness.
----------------------------
The obligations of the Lenders to make Loans hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other amounts
due and payable to the Administrative Agent and the Lenders on or prior to the
Closing Date, including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the
Administrative Agent) required to be reimbursed or paid by the Borrower
hereunder, under any other Loan Document and under any agreement with the
Administrative Agent or SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Markets, a division
of SunTrust Capital Markets, Inc., as Sole Lead Arranger. The Administrative
Agent shall provide the Borrower with an estimate of all such fees incurred
through the Closing Date and other amounts due and payable at closing no later
than 2 Business Days prior to the Closing Date; provided however that the
failure of any additional reasonable fees or other reasonable amounts to be
included in such estimate shall not relieve the Borrower of its obligations to
pay all such amounts after the Closing Date upon presentation of applicable
statements or invoices therefor.
(b) The Administrative Agent shall have received the following (except to
the extent otherwise expressly provided in the Post-Closing Agreement):
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) a duly executed Note payable to each Lender requesting such Note;
(iii) the duly executed Guaranty Agreement and Contribution Agreement;
(iv) evidence that the Borrower's Existing Credit Agreement and
Existing Synthetic Leases and related financing agreements and collateral
instruments are being terminated and released, that all interest, fees,
principal, rents, and other amounts owing under the Existing Synthetic
Leases and related financing agreements through the Closing Date will be
paid in full from the initial Loans, and that title to all real and
personal property subject to the Existing Synthetic Leases has been
conveyed to the Mortgagors executing and delivering the respective
Mortgages to the Collateral Agent, all such conveyances and releases to be
in form satisfactory to the Administrative Agent, together with evidence
reasonably satisfactory to the Administrative Agent that
36
arrangements have been made for the recording of such conveyances and
releases and payment of all filing and recording fees, costs, and expenses,
including all transfer taxes and other amounts payable in respect thereof;
(v) the duly executed Collateral Documents, together with evidence
satisfactory to the Administrative Agent that arrangements have been made
for the recording of such Collateral Documents as applicable and payment of
all filing and recording fees, costs, and expenses, including all mortgage,
documentary stamp, intangibles and other taxes and amounts in respect
thereof;
(vi) with respect to each of the Mortgaged Non-Retail Properties, a
current ALTA ACSM as-built survey of such property which includes the
Minimum Standard Detail Requirements adopted by ALTA and ACSM in 1999,
prepared by a land surveyor registered and licensed in the State where the
applicable Mortgaged Non-Retail Property is located, together with the
certificate of such land surveyor, in form and substance satisfactory to
the Administrative Agent; and with respect to each of the Mortgaged Retail
Properties, the existing boundary survey of such property;
(vii) fully paid ALTA mortgagee title insurance policies in form and
substance acceptable to the Administrative Agent (in each case including
such endorsements and affirmative coverages as the Administrative Agent
shall specify) in respect of each of the Mortgaged Properties, issued by a
title insurance company reasonably acceptable to the Administrative Agent
and insuring the Collateral Agent's lien on and security title to the
Mortgaged Property as a valid first priority lien and security title
therein, subject only to such encumbrances and exceptions as may be
approved by the Administrative Agent; provided that the mortgagee's title
insurance policy may be delivered after the Closing Date if on the Closing
Date the title insurance company delivers to the Administrative Agent
currently effective duly executed "marked up" title insurance commitments
and irrevocably commits in writing to issue the mortgagee's title insurance
policies in the form of the "marked up" title insurance commitments
promptly after the Closing Date;
(viii) copies of the zoning letters and/or certificates of occupancy
issued in respect of each of the Mortgaged Properties;
(ix) with respect to each of the Mortgaged Properties, copies of the
Phase I and, if applicable, Phase II Environmental Site Assessment Report
obtained at the time such property was acquired for lease to the Borrower
or its Subsidiaries pursuant to the Existing Synthetic Leases, all in form
and substance reasonably satisfactory to the Administrative Agent;
(x) certificates of insurance, all in form and detail acceptable to
the Administrative Agent, describing the types and amounts of insurance
(property and liability) covering the properties of the Borrower and its
Subsidiaries, and in each case with respect to insurance relating to the
Mortgaged Properties, naming the Collateral Agent as mortgagee/loss payee
or additional insured, as the case may be, together with a lender's loss
payable endorsement in form and substance satisfactory to the
Administrative Agent;
37
(xi) the duly executed agreement of the Development Authority
consenting to the Mortgage on the leasehold title and interest in the
Headquarters Property and joining in the grant of such Mortgage for
purposes of subordinating and subjecting the Development Authority's title
therein to the Mortgage;
(xii) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its board of directors, or other comparable governing
documents and authorizations, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the
name, title and true signature of each officer of such Loan Party executing
the Loan Documents to which it is a party;
(xiii) certified copies of the articles of incorporation or other
organizational documents of each Loan Party, together with certificates of
good standing or existence, as may be available from the Secretary of State
of the jurisdiction of incorporation or formation of such Loan Party and
each other jurisdiction where such Loan Party is required to be qualified
to do business as a foreign corporation;
(xiv) the favorable written opinions of (i) ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
(ii) Bass, ▇▇▇▇▇ & ▇▇▇▇, (iii) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, and (iv) Debevoise &
▇▇▇▇▇▇▇▇, each as counsel to the Loan Parties, addressed to the
Administrative Agent, the Issuing Bank, and each of the Lenders, and
covering such matters relating to the Loan Parties, the Loan Documents and
the transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(xv) the favorable written opinions of local counsel for the Lenders
engaged by the Administrative Agent in each of the jurisdictions where the
Mortgaged Properties are located, addressed to the Administrative Agent and
each of the Lenders, and covering such matters relating to the Collateral
Documents and other matters relating to the Mortgaged Properties and the
transactions contemplated in the Loan Documents as the Administrative Agent
or the Required Lenders shall reasonably request;
(xvi) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 3.2;
-----------
(xvii) evidence satisfactory to the Administrative Agent that no
withdrawal of the Borrower's ▇▇▇▇▇'▇ Rating or S&P Rating has occurred
after March 11, 2002;
(xviii) evidence satisfactory to the Administrative Agent that the
Borrower's actual Consolidated EBITDAR for the Fiscal Year ending February
1, 2002, as reflected in Borrower's audited year-end financial statements,
was not less than $669,000,000;
(xix) a certified copy of the Indenture and all modifications and
amendments thereto;
(xx) a duly executed Notice of Borrowing;
38
(xxi) a duly executed funds disbursement agreement;
(xxii) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired;
(xxiii) copies of the consolidated financial statements of Borrower
and its Subsidiaries for the 2000 and 2001 Fiscal Years, including balance
sheets, income and cash flow statements audited by independent public
accountants of recognized national standing and prepared in conformity with
GAAP and such other financial information as the Administrative Agent may
reasonably request; and
(xxiv) the duly executed Post-Closing Agreement.
(c) The Borrower and all other parties thereto shall have executed and
delivered the 3-Year Credit Agreement, which shall be in form and substance
satisfactory to the Administrative Agent and the Required Lenders, and the
Administrative Agent and the Required Lenders shall have received certified
copies thereof, together with evidence that all conditions precedent to the
effectiveness thereof have been satisfied and all transactions contemplated by
the 3-Year Credit Agreement have been consummated.
Section 3.2. Each Credit Event.
-------------------
The obligation of each Lender to make a Loan on the occasion of any
Borrowing (other than a Borrowing consisting solely of a continuation or a
conversion of a Borrowing already then outstanding) is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to such Borrowing no
Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in the
Loan Documents shall be true and correct in all material respects on and as of
the date of such Borrowing, before and after giving effect thereto;
(c) since the date of the audited financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or is
------------
reasonably likely to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section 3.2.
-----------
39
Section 3.3. Delivery of Documents.
---------------------
All of the Loan Documents, certificates,
legal opinions and other documents and papers referred to in this Article III,
unless otherwise specified, shall be delivered to the Administrative Agent for
the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative Agent and each
Lender as follows:
Section 4.1. Existence; Power.
-----------------
Except as described on Schedule 4.1, the Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) has all requisite
corporate or other organizational power and authority to carry on its business
as now conducted, and (iii) is duly qualified to do business, and is in good
standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified is not reasonably likely to result in a
Material Adverse Effect.
Section 4.2. Organizational Power; Authorization.
------------------------------------
The execution, delivery and performance by each Loan Party of the Loan
Documents to which it is a party are within such Loan Party's organizational
powers and have been duly authorized by all necessary organizational action,
including if required, action of its stockholders, partners, members, or other
owners, as the case may be. This Agreement and each other Loan Document have
been duly executed and delivered by the Borrower and the other Loan Parties, as
the case may be, and constitute valid and binding obligations of the Borrower or
such Loan Party (as the case may be), enforceable against it in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts.
------------------------------------
The execution, delivery and performance by the Borrower of this Agreement,
and by each Loan Party of the other Loan Documents to which it is a party (i) do
not require any consent or approval of, registration or filing with, or any
action by, any Governmental Authority, except those as have been obtained or
made and are in full force and effect (ii) will not violate any applicable law,
rule or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (iii) will not violate or result in a default under the
Indenture or any other indenture, mortgage, loan or credit agreement, lease or
financing agreement, or other material agreement or instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and
40
(iv) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
Section 4.4. Financial Statements.
--------------------
The Borrower has furnished to each Lender (i) the audited consolidated
balance sheet of the Borrower and its Subsidiaries as of February 1, 2002 and
the related consolidated statements of income, shareholders' equity and cash
flows for the Fiscal Year then ended prepared by Ernst & Young LLP ,and (ii) the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
May 3, 2002, and the related unaudited consolidated statements of income and
cash flows for the Fiscal Quarter and year-to-date period then ending, certified
by a Responsible Officer. Such financial statements fairly present in all
material respects the consolidated financial condition of the Borrower and its
Subsidiaries as of such dates and the consolidated results of operations for
such periods in conformity with GAAP consistently applied, subject to year-end
audit adjustments and the absence of notes in the case of the statements
referred to in clause (ii). None of the Borrower or its Subsidiaries has any
material contingent obligations or liabilities, or material liabilities for
known taxes, long-term leases or unusual forward or long-term commitments
required by GAAP to be reflected in the foregoing financial statements or the
notes thereto that are not so reflected. Since February 1, 2002 through the
Closing Date, there have been no changes with respect to the Borrower and its
Subsidiaries which have had or are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect.
Section 4.5. Litigation and Environmental Matters.
------------------------------------
(a) Except as may be disclosed on Schedule 4.5, no litigation, investigation
------------
or proceeding of or before any arbitrators, courts or other Governmental
Authorities is pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that is reasonably
likely to materially impair the value of any Mortgaged Property or otherwise
have, either individually or in the aggregate, a Material Adverse Effect, or
(ii) that in any manner draws into question the validity or enforceability of
this Agreement or any other Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become the subject of any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any basis
for any Environmental Liability, which in the case of any Mortgaged Non-Retail
Property is reasonably likely to materially impair the value of such property,
or in the case of any Mortgaged Retail Properties is reasonably likely to,
individually or in the aggregate, result in a Material Adverse Effect.
Section 4.6. Compliance with Laws.
---------------------
The Borrower and each Subsidiary is in compliance with all applicable laws,
rules, regulations, judgments and orders of any Governmental Authority except
where non-
41
compliance, either individually or in the aggregate, is not reasonably likely to
result in a Material Adverse Effect.
Section 4.7. Investment Company Act, Etc.
------------------------------
Neither the Borrower nor any of its Subsidiaries is (i) an "investment
company" or is "controlled" by an "investment company", as such terms are
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (ii) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended, which
prohibits its ability to incur or consummate the transactions contemplated
hereby, and neither the Borrower nor any Subsidiary is otherwise subject to any
other regulatory limitations of any Governmental Authority affecting its ability
to incur or guarantee debt as contemplated hereby or by any other Loan Document.
Section 4.8. Taxes.
-----
(a) The Borrower and its Subsidiaries and each other Person for whose taxes
the Borrower or any Subsidiary could become liable have timely filed or caused
to be filed all Federal and state tax returns except as noted in this Section
-------
4.8 and all other material tax returns that are required to be filed by them,
---
and have paid all taxes (other than local and municipal taxes and assessments in
an aggregate amount not to exceed $1,000,000) shown to be due and payable on
such returns or on any assessments made against it or its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority, except where the same are currently being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as the case may be, has set aside on its books adequate reserves in
accordance with GAAP. As of the Closing Date, the charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
(b) The Borrower and its Subsidiaries have not filed their federal, state
and local income, franchise and excise tax returns for the Fiscal Year ended
February 2, 2001. Based on their preliminary analysis of their tax liability for
such year, the Borrower and its Subsidiaries reasonably believe that no material
amounts will be owed with the filing of those returns, and the Borrower and its
Subsidiaries have paid all estimated taxes for such year. The Borrower and its
Subsidiaries have properly extended the time for filing and have made or will
make arrangements for filing in a timely manner, their federal, state and local
income, franchise and excise tax returns for the Fiscal Year ended February 1,
2002 and have paid all estimated taxes for such year.
..
Section 4.9. Margin Regulations.
-------------------
None of the proceeds of any of the Loans will be used for "purchasing" or
"carrying" any "margin stock" with the respective meanings of each of such terms
under Regulation U of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time and any successor regulation, or for
any purpose that would result in a violation of the provisions of Regulation U.
If requested by the Administrative Agent or any
42
Lender, the Borrower will furnish the requesting party a statement to the
foregoing effect in conformity with the requirements of Regulation U.
Section 4.10. ERISA. Except as may be disclosed on Schedule 4.10:
----- -------------
(a) None of the Borrower or its Subsidiaries or their respective ERISA
Affiliates maintains or contributes to, or has during the past five (5) years
maintained or contributed to, any Plan that is subject to Title IV of ERISA;
(b) Each Plan maintained by the Borrower or any of its Subsidiaries or their
respective ERISA Affiliates has at all times been maintained, by their terms and
in operation, in compliance with all applicable laws, and none of such Persons
are subject to tax or penalty with respect to any such Plan, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
Chapter 43 of the Code, or any tax or penalty resulting from a loss of deduction
under Sections 162, 401, or 419 of the Code, where the failure to comply with
such laws, and such taxes and penalties, taken as a whole with all other
liabilities referred to in this Section 4.10, is in the aggregate reasonably
------------
likely to have a Material Adverse Effect;
(c) Neither the Borrower nor any of its Subsidiaries is subject to
liabilities (including Withdrawal Liabilities) with respect to any of its Plans
or the Plans of any of its ERISA Affiliates, including without limitation, any
liabilities arising from Title I or Title IV of ERISA, other than obligations to
fund benefits under an on-going Plan and to pay current contributions, expenses
and premiums with respect to such Plans, where such liabilities, taken as a
whole with all other liabilities referred to in this Section 4.10, is in the
-------------
aggregate reasonably likely to have a Material Adverse Effect;
(d) The Borrower and its Subsidiaries and, with respect to any Plan that is
subject to Title IV of ERISA, each of their respective ERISA Affiliates, have
made full and timely payment of all amounts (i) required to be contributed under
the terms of each Plan and applicable law, and (ii) required to be paid as
expenses of each Plan, where the failure to pay such amounts (when taken as a
whole, including any penalties attributable to such amounts) is reasonably
likely to have a Material Adverse Effect. No Plan subject to Title IV of ERISA
has an "amount of unfunded benefit liabilities" (as defined in Section
4001(a)(18) of ERISA), determined as if such Plan terminated on any date on
which this representation and warranty is deemed made, in any amount which,
taken as a whole with all other liabilities referred to in this Section 4.10, is
------------
reasonably likely to have a Material Adverse Effect if such amount were then due
and payable. Neither the Borrower nor any of its Subsidiaries is subject to
liabilities with respect to post-retirement medical benefits in any amounts
which, taken as a whole with all other liabilities referred to in this Section
-------
4.10, could have a Material Adverse Effect if such amounts were then due and
----
payable; and
(e) No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, is reasonably likely to result in a Material
Adverse Effect. The present value of all accumulated benefit obligations under
each Plan (based on the assumptions used for purposes of Statement of Financial
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Standards No. 87) did not, as of the date of the most recent
financial
43
statements reflecting such amounts, exceed the fair market value of the assets
of all such underfunded Plans.
Section 4.11. Ownership of Property.
---------------------
(a) Each of the Borrower and its Subsidiaries has good and marketable fee
simple title to, or a valid leasehold interest in, all of its real property, and
good title to or valid leasehold interest in all of its personal property and
other assets, all as such real and personal property and assets are reflected in
the consolidated balance sheet of the Borrower described in clause (ii) of
Section 4.4, except for properties or assets disposed of in the ordinary course
-----------
of business since such date or as otherwise permitted by the terms of this
Agreement and where the failure to hold such title, leasehold or possession is
not reasonably likely to have a Material Adverse Effect, and the Borrower and
its Subsidiaries enjoy peaceful and undisturbed possession under all of their
respective leases of real and personal property, except where the failure to
enjoy peaceful and undisturbed possession is not reasonably likely to have a
Material Adverse Effect. None of such real or personal property or other assets
is subject to any Liens which secure obligations in excess of $250,000
individually or $5,000,000 in the aggregate as of the Closing Date except as
described on Schedule 7.2 or other Permitted Encumbrances.
------------
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights, franchises, licenses, and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for any
such infringements that, individually or in the aggregate, is not reasonably
likely to have a Material Adverse Effect.
Section 4.12. Insurance.
---------
The Borrower and its Subsidiaries currently maintain, and have maintained at
all times during the previous five years, such insurance with respect to their
properties and business with financially sound and reputable insurers, in such
amounts and having such coverages against losses and damages which the Borrower
in the exercise of its reasonable prudent business judgment has determined to be
necessary to prevent the Borrower and its Subsidiaries from experiencing a loss
that is reasonably likely to have a Material Adverse Effect. The Borrower and
its Subsidiaries have paid all material insurance premiums now due and owing
with respect to such insurance policies and coverages, and such policies and
coverages are in full force and effect.
Section 4.13. Disclosure.
----------
As of the Closing Date, the Borrower has identified in a certificate
delivered to the Administrative Agent on the Closing Date (i) all agreements,
instruments, and corporate or other restrictions to which the Borrower or any of
its Subsidiaries is subject where the breach of any such agreements,
instruments, and corporate or other restrictions is reasonably likely to result
in a Material Adverse Effect, (ii) all agreements, instruments and corporate or
other restrictions to which the Borrower or any of its Subsidiaries is subject
when performed by their respective
44
terms are reasonably likely to result in a Material Adverse Effect, (iii) and
all other matters known to any of them, that, individually or in the aggregate,
is reasonably likely to result in a Material Adverse Effect. Neither the
information furnished by the Borrower for inclusion in the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
(including without limitation, all information furnished or made available in
respect of the Shareholder Settlements and the SEC Investigation) or otherwise
delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading.
It is understood that no representation or warranty is made concerning any
forecasts, estimates, pro forma information, projections and statements as to
anticipated future performance or conditions contained in any such financial
statements, certificates or documents except that as of the date such forecasts,
estimates, pro forma information, projections and statements were generated, (i)
such forecasts, estimates, pro forma information, projections and statements
were based on the good faith assumptions of the management of the Borrower and
(ii) such assumptions were believed by such management to be reasonable. Such
forecasts, estimates, pro forma information and statements, and the assumptions
on which they were based, may or may not prove to be correct.
Section 4.14. Labor Relations.
----------------
There are no strikes, lockouts or other material labor disputes or
grievances against the Borrower or any of its Subsidiaries, or, to the
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries, and no significant unfair labor practice, charges or grievances
are pending against the Borrower or any of its Subsidiaries, or to the
Borrower's knowledge, threatened against any of them before any Governmental
Authority that are reasonably likely to have a Material Adverse Effect. All
payments due from the Borrower or any of its Subsidiaries pursuant to the
provisions of any collective bargaining agreement have been paid or accrued as a
liability on the books of the Borrower or any such Subsidiary, except where the
failure to do so is not reasonably likely to have a Material Adverse Effect.
Section 4.15. Status of Certain Agreements and Other Matters.
-----------------------------------------------
(a) None of the Borrower or its Subsidiaries is in default which is
continuing under or with respect to any Contractual Obligation, including,
without limitation, the Indenture, or any Requirement of Law in any respect
which has had or is reasonably likely to have a Material Adverse Effect. Without
limiting the foregoing, as of the Closing Date, none of the Borrower or its
Subsidiaries has received any notice or claim as to the existence or occurrence
of any unwaived default or breach by the Borrower or any of its Subsidiaries
under the provisions of the Indenture or any other indenture, mortgage, loan or
credit agreement, lease or financing agreement, or other material agreement or
instrument binding on the Borrower or any of its Subsidiaries or any of their
respective properties.
45
(b) None of the Subsidiaries is party to or subject to any agreement or
arrangement restricting or limiting the payment of any dividends or other
distributions by such Subsidiary to the Borrower or any other Subsidiary, the
repayment of any loans or advances made to such Subsidiary by the Borrower or
any other Subsidiary, or the sale or transfer by the Subsidiary of any assets to
the Borrower or any other Subsidiary.
(c) The Borrower has furnished to the Administrative Agent a correct and
complete copy of each agreement or instrument evidencing Indebtedness of the
Borrower or any Subsidiary in each case in an amount greater than $10,000,000,
including all amendments, modifications, and supplements that have been made
with respect thereto, in each case as of the Closing Date.
Section 4.16. Subsidiaries.
------------
(a) Schedule 4.16 sets forth the name of, the ownership interest of the
--------------
Borrower in, the jurisdiction of organization of, and the type of, each
Subsidiary, as of the Closing Date.
(b) On the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, (i) the assets of
each Subsidiary at fair valuation and based on their present fair saleable value
will exceed such Subsidiary's debts including contingent liabilities but
excluding intercompany debt among the Loan Parties, (ii) the remaining capital
of such Subsidiary will not be unreasonably small to conduct such Subsidiary's
business, and (iii) such Subsidiary will not have incurred debts, or have
intended to incur debts, beyond the Subsidiary's ability to pay such debts as
they mature. For purposes of this Section 4.16, "debt" means any liability on a
------------
claim, and "claim" means (x) the right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, or (y)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment in effect hereunder or the principal of and interest on any Loan or
any fee remains unpaid:
Section 5.1. Financial Statements and Other Information.
-------------------------------------------
The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as reasonably available and in any event within 100 days after
the end of each Fiscal Year, a copy of the annual audited financial statements
for such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all notes thereto) of the
Borrower and
46
its Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year, all in reasonable detail and
reported on by Ernst & Young LLP or other independent public accountants of
nationally recognized standing (without a "going concern" or like qualification,
exception or explanation and without any qualification or exception as to the
scope of such audit) to the effect that such financial statements present fairly
in all material respects the financial condition and the results of operations
of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated
basis in accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) as soon as reasonably available and in any event within 50 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year, an
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such Fiscal Quarter and the related unaudited consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for such Fiscal
Quarter and the then elapsed portion of such Fiscal Year, setting forth in each
case in comparative form the figures for the corresponding Fiscal Quarter and
the corresponding portion of Borrower's previous Fiscal Year, all certified by
the chief financial officer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of notes;
(c) concurrently with the delivery of the financial statements referred to
in clauses (a) and (b) above, a certificate of the chief financial officer of
the Borrower, (i) certifying as to whether there exists a Default or Event of
Default on the date of such certificate, and if a Default or an Event of Default
then exists, specifying the details thereof and the action which the Borrower
has taken or proposes to take with respect thereto, (ii) setting forth in
reasonable detail calculations demonstrating compliance with Article VI, and
----------
(iii) stating whether any material change in GAAP or the application thereof
affecting such financial statements or calculations has occurred since the date
of the Borrower's audited financial statements referred to in Section 4.4 and,
if any change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate or the calculations set forth
therein;
(d) concurrently with the delivery of the financial statements referred to
in clause (a) above, any comment or management letter or report submitted by the
accounting firm that reported on such financial statements, and a certificate of
such accounting firm stating whether they obtained any knowledge during the
course of their examination of such financial statements of any Default or Event
of Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) as soon as available and in any event within 15 days after the end of
each fiscal month during which the financial covenant set forth in Section 6.3
-----------
remains in effect a certificate of the chief financial officer of the Borrower
setting forth in reasonable detail (i) the Eligible Inventory owned by the
Borrower and a categorical breakdown (based on the definitions of Eligible
Inventory) of all Eligible Inventory as of such date, (ii) Consolidated Funded
Debt as of such date, and (iii) calculations demonstrating compliance with
Section 6.3 for such fiscal month;
-----------
47
(f) promptly (and in no event later than 5 Business Days) provide to the
Administrative Agent upon the written request of the Administrative Agent or any
Lender, copies of any specified periodic and other reports (including without
limitation, all reports filed on Forms 8-K, 10-Q, and 10-K), proxy statements
and other materials filed by the Borrower with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all functions of
said Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
Section 5.2. Notices of Material Events.
---------------------------
The Borrower will furnish to the Administrative Agent and each Lender
reasonably prompt written notice (given in no event later than 5 Business Days)
of the following:
(a) after a Responsible Officer of the Borrower knows thereof, the
occurrence of any Default or Event of Default;
(b) after a Responsible Officer of the Borrower knows thereof, the filing or
commencement of any action, suit or proceeding by or before any arbitrator,
court or other Governmental Authority against or, to the knowledge of the
Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined (but excluding any action, suit or proceeding where the Borrower's
management has determined in good faith after reasonable inquiry that the
likelihood of any adverse determination is remote), is reasonably likely to
result in a Material Adverse Effect;
(c) after a Responsible Officer of the Borrower knows thereof, the
occurrence of any event or any other development by which the Borrower or any of
its Subsidiaries (i) fails to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) becomes subject to any Environmental Liability, (iii)
receives notice of any claim with respect to any Environmental Liability, or
(iv) becomes aware of any basis for any Environmental Liability, and in each of
the preceding clauses, which individually or in the aggregate is reasonably
likely to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any other
ERISA Events that have occurred, is reasonably likely to result in liability of
the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;
(e) the effectiveness of any material amendment, modification or supplement
to the Indenture;
(f) the receipt by the Borrower or any of its Subsidiaries of any notice or
claim asserting the existence or occurrence of (i) any default, breach, or
violation of the terms of the Indenture or any other indenture, mortgage, loan
or credit agreement, lease or financing arrangement, or other material agreement
or instrument, in any case where the Indebtedness
48
associated with any such agreement or instrument exceeds $10,000,000, or (ii)
any event or condition that would require or permit the holder of any
Indebtedness of the Borrower or any of its Subsidiaries in an amount greater
than $10,000,000 to exercise its rights to require the repayment, redemption or
repurchase, or other acquisition of such Indebtedness by the Borrower or any of
its Subsidiaries prior to the scheduled maturity thereof; and
(g) any other development that results in, or is reasonably likely to result
in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
Section 5.3. Existence; Conduct of Business.
-------------------------------
The Borrower will, and will cause each of its Subsidiaries to, (i) preserve,
renew and maintain in full force and effect its legal existence, (ii) do or
cause to be done all things reasonably necessary to preserve, renew and maintain
in full force and effect its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and (iii) continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc.
---------------------------
The Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and requirements of any Governmental Authority
applicable to its properties and business operations (including, without
limitation, all Environmental Laws and all licenses, permits, approvals, orders
and directives issued by Governmental Authorities pursuant to such Environmental
Laws, and all ERISA laws, regulations and orders), except where the failure to
do so, either individually or in the aggregate, is not reasonably likely to
result in a Material Adverse Effect.
Section 5.5. Payment of Taxes and Other Obligations.
---------------------------------------
Prior to October 15, 2002, the Borrower and its Subsidiaries shall file
their federal, state and local income tax returns for the Fiscal Years ended
February 2, 2001 and February 1, 2002. The Borrower will, and will cause each of
its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (i) the validity or amount thereof is
being contested in good faith by appropriate proceedings, and (ii) the Borrower
or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP.
Section 5.6. Books and Records.
-----------------
The Borrower will, and will cause each of its Subsidiaries to, keep proper
books of record and account in which full, true and correct entries shall be
made of all dealings and
49
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
Section 5.7. Visitation, Inspection, Etc.
----------------------------
The Borrower will, and will cause each of its Subsidiaries to, permit any
representative of the Administrative Agent or any Lender to visit and inspect
its properties, and to discuss its affairs, finances with any of its officers,
all at such reasonable times during normal business hours and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior
notice to the Borrower; provided, however, if an Event of Default has occurred
and is continuing, the Borrower will, and will cause each of its Subsidiaries
to, permit any representative of the Administrative Agent or any Lender to visit
and inspect its properties, to examine its books and records, and to make copies
and take extracts therefrom, and to discuss its affairs, finances and accounts
with any of its officers and with its independent certified public accountants,
all at such reasonable times during normal business hours and as often as the
Administrative Agent or any Lender may reasonably request and with no prior
notice.
Section 5.8. Maintenance of Properties; Insurance.
-----------------------------------------
The Borrower will, and will cause each of its Subsidiaries to, (i) keep and
maintain all property material to the conduct of its business in good working
order and condition, subject to ordinary wear and tear, except where the failure
to do so, either individually or it the aggregate, is not reasonably likely to
result in a Material Adverse Effect, and (ii) maintain with financially sound
and reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations.
Section 5.9. Use of Proceeds
---------------
The Borrower will use a portion of the proceeds of the Loans advanced on the
Closing Date in an aggregate principal amount of $95,000,000 to fund, directly
or through capital contributions made by the Borrower to DGI and DGI's use of
such capital contributions to fund the DGI Loans, the refinancing and
replacement of a portion of the existing Indebtedness under the Existing
Synthetic Leases. Thereafter, proceeds of any other Loans shall be used to
finance working capital needs and capital expenditures and for other general
corporate purposes of the Borrower and its Subsidiaries (including funding of
draws under trade letters of credit issued for the account of the Borrower or
its Subsidiaries). No part of the proceeds of any Loan, will be used, whether
directly or indirectly, for any purpose that would result in a violation of any
rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X.
Section 5.10. Additional Subsidiaries.
------------------------
(a) If any additional U.S. Subsidiary is acquired or formed after the
Closing Date, the Borrower will, within ten (10) Business Days after such U.S.
Subsidiary is acquired or formed, notify the Administrative Agent and the
Lenders thereof and cause such Subsidiary to become a Guarantor by joining the
Guaranty Agreement and the Contribution Agreement pursuant to joinder agreements
in substantially the form of Annex A to the Guaranty Agreement and Annex A to
the Contribution Agreement and will cause such Subsidiary to
50
deliver simultaneously therewith similar documents applicable to such Subsidiary
required under Section 3.1 as requested by the Administrative Agent.
(b) If any Foreign Subsidiary is acquired or formed after the Closing Date,
the Borrower will, within ten (10) Business Days after such Foreign Subsidiary
is acquired or formed, notify the Administrative Agent and the Lenders thereof
and, unless otherwise agreed by the Required Lenders, the Borrower shall, or
shall cause its U.S. Subsidiary owning such Person, to pledge sixty-five percent
(65%) of each class of voting shares or comparable equity interest and one
hundred percent (100%) of each class of nonvoting shares or comparable equity
interest (or if such pledge of 100% thereof would have an adverse income tax
consequence to the Borrower, sixty five percent (65%) of each class of nonvoting
shares or comparable equity interest) owned by the Borrower or such U.S.
Subsidiary to the Administrative Agent as security for the Obligations pursuant
to a pledge agreement in form and substance satisfactory to the Administrative
Agent and the Required Lenders, and to deliver the original stock certificates
evidencing such shares or comparable equity interest to the Administrative
Agent, together with appropriate transfer powers executed in blank and Uniform
Commercial Code financing statements.
Section 5.11. Further Assurances.
------------------
(a) The Borrower will, and will cause each Guarantor to, execute any and all
further documents, agreements, instruments, Uniform Commercial Code financing
statements, and take all such further actions (including the filing and
recording of any such financing statements, fixture filings, mortgages, deeds of
trust, deeds to secure debt, landlord consents and other documents) that may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to further evidence, perfect, and
protect the priority of the Collateral Agent's first priority lien on, security
title to, and security interest in all portions of the Collateral, all at the
expense of the Borrower.
(b) The Borrower will, and will cause each Guarantor to, comply with the
requirements of the Post-Closing Agreement.
(c) If any Mortgaged Retail Property is replaced pursuant to Section
-------
2.10(b)(ii), the Borrower shall, and shall cause each applicable Guarantor to,
-----------
execute and deliver to the Administrative Agent a Mortgage on such new
replacement Mortgaged Retail Property, together with all agreements and other
documents in respect of such Mortgage and the new replacement Mortgaged Retail
Property of the types described in clauses (v) through (xv) of Section 3.1(b)
---------------
(but excluding clause (xi) thereof) and provide all other documents and take or
cause to be taken all other actions required for Mortgaged Retail Properties
pursuant to Section 3.1 as if such new replacement Mortgaged Retail Property
-----------
existed on the Closing Date, and take all such further actions in respect of
such new replacement Mortgaged Retail Property that may be required as provided
in Section 5.11(a).
---------------
51
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder, or the principal of or interest on any Loan remains
unpaid, or any fee remains unpaid:
Section 6.1. Funded Debt to EBITDAR Ratio.
----------------------------
The Borrower and its Subsidiaries shall maintain on a consolidated basis, as
of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending May
3, 2002, a ratio of (i) Consolidated Adjusted Funded Debt (as of the end of such
Fiscal Quarter) to (ii) Consolidated EBITDAR, of less than 2.00:1.00 (calculated
for the Fiscal Quarter then ending and the immediately preceding three (3)
Fiscal Quarters).
Section 6.2. EBITR to Interest and Rents Ratio.
------------------------------------
The Borrower and its Subsidiaries shall maintain on a consolidated basis, as
of the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending May
3, 2002, a ratio of (i) Consolidated EBITR to (ii) Consolidated Interest Expense
plus without duplication Consolidated Rent Expense, of greater than 2.00:1.00
(all such amounts to be calculated for the Fiscal Quarter then ending and the
immediately preceding three (3) Fiscal Quarters).
Section 6.3. Asset Coverage Ratio.
--------------------
The Borrower and its Subsidiaries shall maintain on a consolidated basis, as
of the end of each fiscal month, commencing with the fiscal month ending July 5,
2002, an Asset Coverage Ratio of not less than 1.25:1.00; provided, however, the
-------- -------
foregoing covenant shall not be deemed to be in effect or be applicable as of
the end of any fiscal month where the Borrower has maintained as of such time,
for a period of at least 90 consecutive days ending as of such time, a Debt
Rating from ▇▇▇▇▇'▇ of Baa3 or higher and a Debt Rating from S&P of BBB- or
higher.
Section 6.4. Consolidated Net Worth
------------------------
The Borrower will not permit its Consolidated Net Worth at any time to be
less than $950,000,000, plus 50% of Consolidated Net Income on a cumulative
basis for all preceding Fiscal Quarters, commencing with the Fiscal Quarter
ending May 3, 2002; provided, that if Consolidated Net Income is negative in any
--------
Fiscal Quarter the amount added for such Fiscal Quarter shall be zero and such
negative Consolidated Net Income shall not reduce the amount of Consolidated Net
Income added from any previous Fiscal Quarter. The minimum required amount of
Consolidated Net Worth set forth above shall be increased by 100% of the amount
by which the Borrower's total shareholders' equity is increased as a result of
any issuance or sale of capital stock of the Borrower after the Closing Date.
Promptly upon the consummation of such issuance or sale, the Borrower shall
notify the Administrative Agent in writing of the amount of such increase in
"total shareholders' equity".
Section 6.5. Capital Expenditures.
----------------------
The Borrower and its Subsidiaries will not, on a consolidated basis, make
Capital Expenditures in excess of $200,000,000 during any Fiscal Year, provided,
---------
however, the foregoing covenants set forth in this Section 6.5 shall not be
-----------
deemed to be in effect or be applicable at such times as the Borrower shall have
maintained at such time, for a period of at least 90 consecutive days ending as
of such time, a ▇▇▇▇▇'▇ Rating of Baa3 or higher and a S&P Rating of BBB- or
higher.
52
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder, or the principal of or interest on any Loan remains
unpaid, or any fee remains unpaid:
Section 7.1. Indebtedness. The Borrower will not, and will not permit any of
-------------
its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of the Borrower owing to any Subsidiary, Indebtedness of
any Subsidiary owing to the Borrower, and Indebtedness of any Subsidiary (other
than DGI) owing to any other Subsidiary (other than DGI); provided, that the
---------
aggregate amount of Indebtedness of the Borrower to any Subsidiary that is not a
Guarantor (including all such Indebtedness existing on the Closing Date), shall
be subordinated to the Obligations on terms satisfactory to the Administrative
Agent and shall not exceed $5,000,000 at any time outstanding;
(c) Indebtedness existing on the date hereof and set forth on Schedule 7.1
------------
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(d) Indebtedness of a Person which becomes a Subsidiary after the date
hereof, provided that (i) such Indebtedness existed at the time such Person
became a Subsidiary and was not created in anticipation thereof and (ii)
immediately after giving effect to the acquisition of such Person by the
Borrower no Default or Event of Default shall have occurred and be continuing;
(e) Indebtedness of the Borrower or any Subsidiary (other than DGI) incurred
to finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that such Indebtedness
---------
is incurred prior to or within 120 days after such acquisition or the completion
of such construction or improvements, and all extensions, renewals, and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;
(f) Guarantees by the Borrower of Indebtedness of any Subsidiary otherwise
permitted to be incurred or exist under the terms of this Agreement, and
Guarantees by any Subsidiary (other than DGI) of Indebtedness of the Borrower or
any other Subsidiary that is otherwise permitted to be incurred or exist under
the terms of this Agreement;
53
(g) Indebtedness of the Borrower arising under the 3-Year Credit Agreement
and Guarantees by Subsidiaries of Borrower of such Indebtedness;
(h) Hedging Obligations permitted by Section 7.11;
-------------
(i) Indebtedness of the Borrower or any Subsidiary incurred in connection
with sale leaseback transactions permitted by Section 7.9;
------------
(j) Unsecured Indebtedness of any Subsidiaries (other than DGI) of the
Borrower not otherwise permitted by this Section 7.1, in an aggregate principal
------------
amount outstanding at any time not to exceed $10,000,000;
(k) Unsecured Indebtedness of the Borrower not otherwise permitted by this
Section 7.1, in an aggregate principal amount outstanding at any time not to
exceed $35,000,000; and
(l) the DGI Loans.
Section 7.2. Liens. The Borrower will not, and will not permit any of its
------
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its
assets or property now owned or hereafter acquired or, except:
(a) Liens created in favor of the Administrative Agent securing the
Obligations under this Agreement and the "Obligations" under the 3-Year Credit
Agreement;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any Subsidiary
existing on the Closing Date as described on Schedule 7.2, provided, that such
------------ ---------
Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary;
(d) any Liens granted to secure purchase money Indebtedness permitted to be
incurred as provided in Section 7.1(e) and any renewals and extensions thereof
--------------
as provided by Section 7.1(e), provided that (i) such Lien secures only such
---------------- -------- ----
purchase money Indebtedness, (ii) such Lien attaches to such asset concurrently
or within 60 days after the acquisition, improvement or completion of the
construction thereof, and (iii) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such fixed or capital assets;
(e) any Liens granted in respect of cash amounts deposited or held as
security for payment of the Shareholder Settlements pursuant to the terms of a
court order or orders approving or implementing such settlement(s), provided
--------
that the aggregate amount of such cash does not exceed $165,000,000; and
(f) Liens on the property or assets of a Person which becomes a Subsidiary
after the date hereof securing Indebtedness permitted by subsection 7.1(d),
provided that (i) such Liens existed at the time such Person became a Subsidiary
--------
and were not created in anticipation thereof, (ii) any such Lien does not extend
to cover any property or assets of such Person after
54
the time such Person becomes a Subsidiary and (iii) such Liens do not secure
obligations in excess of $10,000,000 in the aggregate at any time outstanding;
and
(g) Liens (not otherwise permitted hereunder) which secure obligations not
exceeding (as to the Borrower and all Subsidiaries other than DGI) $10,000,000
in aggregate amount at any time outstanding; and
(h) Liens on the property or assets of a Mortgagor, other than any portion
of the Collateral, to secure the DGI Loans permitted by Section 7.1(l).
Section 7.3. Fundamental Changes.
--------------------
(a) The Borrower will not, and will not permit any Subsidiary to, merge into
or consolidate into any other Person, or permit any other Person to merge into
or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a
single transaction or a series of transactions) all or substantially all of its
assets (in each case, whether now owned or hereafter acquired) or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired) or liquidate or dissolve; provided, that if at
---------
the time thereof and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, and any
Subsidiary may merge into another Subsidiary, provided, that (x) if either party
---------
to such a merger between Subsidiaries is a Guarantor, a Guarantor shall be the
surviving Person, and (y) any such merger involving a Person that is not a
wholly-owned Subsidiary immediately prior to such merger shall not be permitted
hereunder unless also permitted by Section 7.4, (ii) any Subsidiary may sell,
transfer, lease or otherwise dispose of all or substantially all of its assets
(including by way of liquidation) to the Borrower or to a Guarantor, provided,
---------
that if such selling Subsidiary is a Mortgagor, after giving effect to such
sale, transfer, lease or other disposition, the Mortgage and the Lien created
thereunder in favor of the Administrative Agent for the benefit of the Lenders
in the related Mortgaged Property owned by the transferee of such Mortgaged
Property shall remain in full force and effect and perfected (to at least the
same extent as in effect immediately prior to such sale, transfer, lease or
other disposition) and such transferee shall execute an assumption agreement in
form and substance satisfactory to the Administrative Agent expressly assuming
the obligations and liabilities of such selling Subsidiary under the Mortgage
and other applicable Loan Documents, and (iii) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, provided, that if such liquidated or dissolved
---------
Subsidiary is a Mortgagor, after giving effect to such liquidation or
dissolution, the Person succeeding to title to the Mortgaged Property is a
Guarantor and the Mortgage and the Lien created thereunder in favor of the
Administrative Agent for the benefit of the Lenders in the related Mortgaged
Property owned by such Guarantor shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to such
liquidation or dissolution) and such Guarantor shall execute an assumption
agreement in form and substance satisfactory to the Administrative Agent
expressly assuming the obligations and liabilities of such liquidated or
dissolved Subsidiary under the Mortgage and other applicable Loan Documents; and
provided further, that any merger or any sale, transfer or other disposition
-------- --------
55
of assets described in clause (i) or (ii) above involving DGI shall be limited
to a merger with the Borrower where the Borrower is the surviving Person, or a
sale, transfer or other disposition of assets from DGI to the Borrower, as the
case may be.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date hereof and businesses reasonably
related thereto. Without limiting the foregoing, the Borrower shall not permit
DGI to engage in any business or activities other than (i) funding and
collecting the DGI Loans in accordance with their respective terms, and (ii)
purchasing any real and/or personal property having an aggregate purchase price
not to exceed $5,000,000, and leasing such property on a net lease basis to the
Borrower or any other Subsidiary.
Section 7.4. Investments, Loans, Etc. The Borrower will not, and will not
--------------------------
permit any of its Subsidiaries to, hold or acquire (including pursuant to any
merger with any Person that was not a wholly-owned Subsidiary prior to such
merger), any capital stock, partner or limited liability company interests or
other ownership interests, evidence of Indebtedness or other securities
(including any option, warrant, or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person (all of the foregoing being collectively called "Investments"),
except:
(a) Investments (other than Permitted Investments) existing on the date
hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
------------
(d) repurchase Senior Notes (to the extent permitted by the Indenture and
applicable securities laws) for aggregate consideration not exceeding
$50,000,000 in any calendar year, so long as, before and after giving effect
thereto, the Borrower shall be in compliance with the financial covenants set
forth in Article VI and no other Default or Event of Default shall have occurred
and be continuing at the time such repurchase is effected;
(e) Investments made by the Borrower in or to any Subsidiary and by any
Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i)
---------
the aggregate amount of Investments by Loan Parties in or to, and Guarantees by
Loan Parties of Indebtedness of, any Subsidiary that is not a Guarantor
(including all such Investments and Guarantees existing on the Closing Date),
shall not exceed $5,000,000 at any time outstanding, and (ii) any Acquisition
giving rise to any such Investment shall have been permitted pursuant to
Section 7.10;
-------------
(f) loans or advances to employees and officers of the Borrower or any
Subsidiary made in the ordinary course of business and not in excess of amounts
customarily and historically loaned or advanced by the Borrower to such
employees and officers; provided, however, that the aggregate amount of all such
--------- --------
loans and advances does not exceed $2,500,000 at any time outstanding;
56
(g) Hedging Obligations permitted by Section 7.11;
-------------
(h) Investments received in settlement of debt created in the ordinary
course of business; and
(i) extension of trade credit in the ordinary course of business;
(j) Investments in assets held under non-qualified plans and deferred
compensation arrangements for certain members of management and other employees
as disclosed from time to time in the notes to the Borrower's consolidated
financial statements as filed by the Borrower with the Securities and Exchange
Commission; and
(k) Investments not otherwise permitted by the preceding clauses of this
Section 7.4 in an aggregate amount not to exceed $10,000,000 at any one time
outstanding.
Section 7.5. Restricted Payments. The Borrower will not, and will not permit
--------------------
its Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any dividend or distribution on any class of its capital stock,
partner or limited liability company interests, or other ownership interests, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of capital stock, partner or limited liability
company interests, or other ownership interests, or Indebtedness subordinated to
the Obligations of the Borrower, or any options, warrants, or other rights to
purchase such capital stock, partner or limited liability company interests, or
other ownership interests, or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends and
distributions payable by the Borrower solely in shares of any class of its
common stock, (ii) Restricted Payments made by any Subsidiary to the Borrower or
to another Subsidiary, (iii) cash dividends paid on, and cash redemptions of,
the common stock of the Borrower so long as, before and after giving effect
thereto, the Borrower shall be in compliance with the financial covenants set
forth in Article VI and no other Default or Event of Default shall have occurred
and be continuing at the time such dividend is paid or redemption is made and
(iv) Restricted Payments made in respect of restricted stock and stock options
granted or to be granted under the employee compensation plans of the Borrower
described in applicable reports or other filings made by the Borrower with the
Securities and Exchange Commission or as otherwise disclosed by the Borrower in
writing to the Lenders.
Section 7.6. Sale of Assets. The Borrower will not, and will not permit any
---------------
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to any Person other than the Borrower or any
wholly-owned Subsidiary of the Borrower (or to qualify directors if required by
applicable law), except:
(a) the sale or other disposition, for fair market value and in the ordinary
course of business, of obsolete or worn out property or other property not
necessary for operations of the Borrower and its Subsidiaries;
57
(b) the sale of inventory and Permitted Investments in the ordinary course
of business;
(c) the sale or transfer of properties in accordance with Section 7.9; and
(d) the sale or other disposition of other assets in an aggregate amount
from the Closing Date to the Commitment Termination Date not to exceed 5% of the
consolidated total assets of the Borrower as of the last day of the most
recently ended Fiscal Year of the Borrower; provided that if at the end of any
Fiscal Year, 5% of the consolidated total assets of the Borrower for such Fiscal
Year is less than 5% of the consolidated total assets of the Borrower for any
preceding Fiscal Year and the Borrower's sales and dispositions of assets made
from the Closing Date to such date exceed 5% of the consolidated total assets of
the Borrower for such Fiscal Year but do not exceed 5% of the consolidated total
assets of the Borrower for such preceding Fiscal Year, the Borrower shall not be
in violation of this Section 7.6(d).
Section 7.7. Transactions with Affiliates. The Borrower will not, and will
-----------------------------
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (i) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (ii)
transactions between or among the Borrower and its wholly owned Subsidiaries not
involving any other Affiliates, (iii) any Restricted Payment permitted by
Section 7.5 and (iv) any transaction permitted under Section 7.4(e).
Section 7.8. Restrictive Agreements. The Borrower will not, and will not
------------------------
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (i)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (ii) the ability of any Subsidiary to pay dividends or other
distributions with respect to its capital stock, partner or limited liability
company interests, or other ownership interests, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary, or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that the
---------
foregoing shall not apply to (x) restrictions or conditions imposed by law or by
this Agreement, the 3-Year Credit Agreement or the Indenture, (y) restrictions
or conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions and conditions apply only to
the property or assets securing such Indebtedness, and (z) customary provisions
in leases and other contracts restricting the assignment thereof.
Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and
----------------------------------
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any properties, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, having market values in excess of $50,000,000 in the aggregate, and
thereafter rent or lease such properties or portions thereof that it intends to
58
use for substantially the same purpose or purposes as the properties sold or
transferred.
Section 7.10. Acquisitions. The Borrower will not, and will not permit any
-------------
Subsidiary to, make or effect any Acquisitions for a total purchase price in
excess of $50,000,000 in the aggregate during any twelve (12) month period. For
purposes hereof, any purchase price shall be determined by the sum of the
following items paid, given, transferred or assumed or acquired in consideration
of such Acquisition: (i) all cash, (ii) the principal amounts of all promissory
notes, other deferred payment obligations given as a portion of the
consideration for such Acquisition, and all Indebtedness of the Person or
business acquired in such Acquisition that remains in effect as an obligation of
the Borrower or any Subsidiary following such Acquisition, (iii) the value of
all capital stock, partner or limited liability company interests, and other
ownership interests, and (iv) the value of all other property (the value of such
stock and property to be as determined in good faith by the Borrower).
Section 7.11. Hedging Transactions. The Borrower will not, and will not
----------------------
permit any of its Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the management of its liabilities arising in the ordinary course of business.
Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging
Transaction entered into for speculative purposes or of a speculative nature
(which shall be deemed to include any Hedging Transaction under which the
Borrower or any of its Subsidiaries is or may become obliged to make any payment
(i) in connection with the purchase by any third party of any capital stock,
partner or limited liability company interests or other ownership interests, or
any Indebtedness, of the Borrower or any Subsidiary, or (ii) as a result of
changes in the market value of any such capital stock, partner or limited
liability company interests or other ownership interests, or Indebtedness) is
not a Hedging Obligations entered into in the ordinary course of business to
hedge or mitigate such risks.
Section 7.12. Actions Relating to Indenture and Senior Notes. The Borrower
------------------------------------------------
will not (i) amend, supplement, or otherwise modify the Indenture or the Senior
Notes in any manner so as to increase the interest rate payable thereon, shorten
the maturity or the average life thereof, or impose or modify any restrictions
on the Borrower of a type or in a manner, taken as a whole with other changes
effected by such amendment, more restrictive on, or otherwise less favorable to,
the Borrower, or (ii) repurchase, redeem, or otherwise acquire any of the Senior
Notes prior to the maturity thereof except as permitted by Section 7.4(d).
Section 7.13. Accounting Changes. The Borrower will not, and will not permit
-------------------
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required or permitted by GAAP, or change the
Fiscal Year of the Borrower or of any Subsidiary, except to change the fiscal
year of a Subsidiary to conform its Fiscal Year to that of the Borrower.
59
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events (each an
------------------
"Event of Default") shall occur:
------------------
(a) the Borrower shall fail to pay any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this Section
-------
8.1) payable under this Agreement or any other Loan Document, within five (5)
----
Business Days after the same shall have become due and payable; or
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Schedules attached hereto) and any amendments
or modifications hereof or waivers hereunder, or in any certificate, report,
financial statement or other document submitted to the Administrative Agent or
the Lenders by any Loan Party or any representative of any Loan Party pursuant
to or in connection with this Agreement or any other Loan Document, shall prove
to be incorrect in any material respect when made or deemed made or submitted;
or
(d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 5.1, 5.2, or 5.3 (with respect to any Loan Party's
-------------- ---- ---
existence), 6.1, 6.2, 6.4, and 6.5 or Article VII; or
---- ---- ---- ---
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or otherwise shall fail to pay any principal of or premium or interest
on any Material Indebtedness that is outstanding, when and as the same shall
become due and payable (whether at scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
evidencing or governing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
60
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this subsection (g), (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any such Subsidiary or for a substantial part of
its property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, or (vi) take any action for the purpose of
effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any Subsidiary or its debts, or any substantial part
of its property, under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect, or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its property, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall admit
in writing its inability to pay, or shall fail generally to pay, its debts as
they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with other ERISA Events that have occurred, is
reasonably likely to result in liability to the Borrower and the Subsidiaries in
an aggregate amount exceeding $10,000,000; or
(k) any judgment or order for the payment of money in excess of $10,000,000
in the aggregate (other than the Shareholder Settlements) shall be rendered
against the Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order, or (ii)
there shall be a period of more than 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that is reasonably likely to have a Material Adverse
Effect, and there shall be a period of more than 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of the Guaranty Agreement shall for any reason cease to be
valid and binding on, or enforceable against, any Guarantor, or any Guarantor
shall so state in writing, or any Guarantor shall seek to terminate its
obligations under the Guaranty Agreement; or
61
(o) the Shareholder Settlements shall exceed $165,000,000 in the aggregate,
or the amounts required to be paid pursuant to any settlement arrangement(s),
judgment(s), decree(s), or order(s) agreed by or entered against the Borrower in
respect of the SEC Investigation shall exceed $15,000,000 in the aggregate; or
(p) an "Event of Default" shall occur under any other Loan Document or under
the 3-Year Credit Agreement;
then, and in every such event (other than an event with respect to the
Borrower described in subsections (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately; (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) exercise all remedies contained in any
other Loan Document; and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either subsections (g) or
(h) of this Section shall occur with respect to the Borrower, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees and other Obligations shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
Notwithstanding anything in this Agreement or the other Loan Documents to the
contrary, all payments received as proceeds hereunder or under any other Loan
Document, or any part thereof, as well as any and all amounts realized in
connection with the enforcement of any right or remedy under or with respect to
any Loan Document, shall be applied by the Administrative Agent as follows:
first, to the payment of all necessary expenses incident to the execution of any
------
remedies under any Loan Document, including reasonable attorneys' fees as
provided herein and in the other Loan Documents, appraisal fees, title search
fees and foreclosure notice costs; second, to all fees and reimbursable expenses
-------
of the Administrative Agent and the Collateral Agent then due and payable
pursuant to any of the Loan Documents; third, to all fees and reimbursable
------
expenses of the Lenders and with respect to any proceeds received with respect
to any Mortgaged Properties, the Issuing Bank (as such term is defined in the
3-Year Credit Agreement), then due and payable pursuant to any of the Loan
Documents, made pro rata to the Lenders and such Issuing Bank based on their
respective Pro Rata Share of such fees and expenses; fourth, to interest then
------
due and payable on the Loans, made pro rata to the Lenders based on their
respective Pro Rata Shares of the Loans; fifth, to principal then due and
------
payable on the Loans and with respect to any proceeds received with respect to
any Mortgaged Properties, the unreimbursed LC Disbursements (as such term is
defined in the 3-Year Credit Agreement) under the 3-Year Credit Agreement and
amounts due in respect of cash collateral required to be maintained for undrawn
amounts under any Letters of Credit (as such term is defined in the 3-Year
Credit Agreement) issued and outstanding under the 3-Year Credit Agreement, made
pro rata to the Lenders, the Administrative Agent and the Issuing Bank (as such
term is defined in the 3-Year Credit Agreement) based on their respective Pro
Rata Shares of the Loans, such unreimbursed LC Disbursements and such cash
collateral amounts; and sixth, to the payment of any amounts then due and
------
payable with respect to any Hedging Obligations and any other amounts then
included in the Obligations as provided herein,
62
and the remainder, if any, shall be paid to the Borrower or such other persons
as may be entitled thereto by law, after deducting therefrom the cost of
ascertaining their identity; provided that, all such payments received by the
Collateral Agent in respect of the Mortgaged Properties shall be applied on a
pro rata basis between the Related Revolving Credit Facilities.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Section 9.1. Appointment of Administrative Agent. Each of the Lenders
---------------------------------------
irrevocably appoints SunTrust Bank as the Administrative Agent (it being
understood and agreed that each reference in this Article IX to the
Administrative Agent shall be deemed to include the Collateral Agent) and
authorizes it to take such actions on its behalf and to exercise such powers as
are delegated to the Administrative Agent under this Agreement and the other
Loan Documents, together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent or attorney-in-fact may perform any
and all of its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions set forth in this Article
shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Section 9.2. Nature of Duties of Administrative Agent. The Administrative
-------------------------------------------
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (i) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (ii) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
-------
10.2), and (iii) except as expressly set forth in the Loan Documents, the
-----
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
-------------
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event
63
of Default unless and until written notice thereof (which notice shall
expressly state that it is a notice of Default or Event of Default arising under
this Agreement), is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (A) any statement, warranty or representation
made in or in connection with any Loan Document, (B) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (C) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (D) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (E) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 9.3. Lack of Reliance on the Administrative Agent. Each of the
------------------------------------------------
Lenders acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Lenders also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder. Each Lender represents to each other party
hereto that it is a bank, savings and loan association or other similar savings
or thrift institution, insurance company, investment fund or company, or other
financial institution or lending company that makes or acquires commercial loans
in the ordinary course of its business and that it is participating hereunder as
a Lender for its own account (but subject to its rights to direct the
disposition of its assets, including, without limitation, assignments and sales
of participation interest in the Loans and its Commitment as contemplated
hereunder), and for such commercial purposes, and that it has the knowledge and
experience to be and is capable of evaluating the merits and risks of being a
Lender hereunder.
Section 9.4. Certain Rights of the Administrative Agent. If the
--------------------------------------------------
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The Administrative Agent
----------------------------------
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been signed, sent or
made by the proper Person. The
64
Administrative Agent may also rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person and shall not incur
any liability for relying thereon. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.
Section 9.6. The Administrative Agent in its Individual Capacity. The Person
----------------------------------------------------
serving as the Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a Lender as any
other Lender and may exercise or refrain from exercising the same as though it
were not the Administrative Agent; and the terms "Lenders", "Required Lenders",
"holders of Notes", or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its capacity as one of
such Lenders or holders. The Person acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
Section 9.7. Successor Administrative Agent.
-------------------------------
(a) The Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent, subject to the
approval by the Borrower provided that no Default or Event of Default shall
exist at such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or any state thereof or a bank which maintains
an office in the United States, having a combined capital and surplus of at
least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
-----------
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan
Documents, and (iii) the Required Lenders shall thereafter perform all duties of
the retiring Administrative Agent under the Loan Documents until such time as
the Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in
65
respect of any actions taken or not taken by any of them while it was serving as
the Administrative Agent.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Notices.
--------
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Dollar General Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telecopy Number: (▇▇▇)-▇▇▇-▇▇▇▇
With copies to: SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E., 24th Floor
Atlanta, Georgia 30308
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
66
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
---------
Agent shall not be effective until actually received by such Person at its
address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Borrower. The Administrative Agent and the Lenders
shall be entitled to rely in good faith on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in good faith reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans and all other
Obligations hereunder shall not be affected in any way or to any extent by any
failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice.
Section 10.2. Waiver; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder or any other Loan Document, and no
course of dealing between the Borrower and the Administrative Agent or any
Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by subsection
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and the Administrative Agent
with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment or waiver shall: (i) increase the
---------
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the date fixed for any
67
scheduled payment of any principal of, or interest on, any Loan or interest
thereon or any fees hereunder or reduce the amount of, waive or excuse any such
scheduled payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.19 (b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the consent of
each Lender, (vi) release any Guarantor or limit the liability of any such
Guarantor under the Guaranty Agreement, without the written consent of each
Lender, or (vii) release all or any substantial portion of the Collateral
without the written consent of each Lender; provided further, that no such
amendment or waiver shall amend, modify or otherwise affect the rights, duties
or obligations of the Administrative Agent without the prior written consent of
such Person.
Section 10.3. Expenses; Indemnification.
--------------------------
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of a single firm of primary counsel,
the local counsel referred to in Section 3.1(b)(xv), and all other local counsel
as the Administrative Agent may reasonably deem necessary, and of the
Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents and any amendments, modifications or waivers thereof (whether
or not the transactions contemplated in this Agreement or any other Loan
Document shall be consummated); and (ii) all reasonable out-of-pocket costs and
expenses (including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside counsel)
incurred by the Administrative Agent or after the occurrence and during the
continuance of any Event of Default, any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing (each, an "Indemnitee") against,
and hold each of them harmless from, any and all costs, losses, liabilities,
claims, damages and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, which may be incurred by or
asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document, or any other agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder
or thereunder or the consummation of any of the transactions contemplated hereby
or thereby, (ii) any Loan or any actual or proposed use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned by the Borrower or any Subsidiary or any
Environmental Liability related in any way to the Borrower or any Subsidiary,
and (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto;
provided, that the Borrower shall not be obligated to indemnify any Indemnitee
---------
for any of the foregoing
68
arising out of such Indemnitee's gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final and nonappealable
judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and each of
the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent under subsections (a), (b) or (c) hereof, each
Lender severally agrees to pay to the Administrative Agent such Lender's Pro
Rata Share (determined as of the time that the unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided, that the unreimbursed
---------
expense or indemnified payment, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 10.4. Successors and Assigns.
-----------------------
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
--------
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
69
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
be an amount which is not less than $1,000,000 and in an integral multiple of
$1,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consent (such
consent of the Borrower not to be unreasonably withheld or delayed), (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loan or the Commitment assigned, and (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $1,000, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
--------
2.16, 2.18, 2.19 and 10.3. Any assignment or transfer by a Lender of rights or
----- ----- ---- -----
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Atlanta, Georgia a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
----------
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, without the consent of, or prior notice to, the
Borrower, or the Administrative Agent sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
-----------
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
70
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver with respect to the following to the extent
affecting such Participant: (i) increase the Commitment of such Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of such Lender if affected thereby, (iii) postpone
the date fixed for any payment of any principal of, or interest on, any Loan or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of such Lender if
affected thereby, (iv) change Section 2.19(b) or (c) in a manner that would
---------------
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders which are required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder, (vi)
release any Guarantor or limit the liability of any such Guarantor under the
Guaranty Agreement without the written consent of such Lender except to the
extent such release is expressly provided under the terms of the Guaranty
Agreement, or (vii) release all or substantially all collateral (if any)
securing any of the Obligations. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17, and 2.18 to the same extent as if it were a Lender and had
----- ----- ----
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7 as though it were a Lender, provided such Participant
------------
agrees to be subject to Section 10.7 as though it were a Lender.
------------
(e) A Participant shall not be entitled to receive any greater payment under
Section 2.16 or Section 2.18 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Non-U.S. Lender if it were
a Lender shall not be entitled to the benefits of Section 2.18 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.18(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
--------
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Notwithstanding anything to the contrary set forth herein, no assignment
by any Lender to an Approved Fund shall relieve the assigning Lender of any of
its obligations to fund Loans under this Agreement if, for any reason, such
Approved Fund fails to fund any such Loans or make any such payments, and the
assigning Lender (and not the Approved Fund) shall have the sole right and
responsibility to deliver all consents, waivers, amendments, and other actions
required or requested under the terms of this Agreement with respect to its
Approved Fund.
71
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the non-exclusive jurisdiction of the United States
District Court of the Northern District of Georgia, and of any state court of
the State of Georgia located in ▇▇▇▇▇▇ County and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection which
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding described in subsection (b) of this Section and brought in any court
referred to in subsection (b) of this Section. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to the service of
process in the manner provided for notices in Section 10.1. Nothing in this
-------------
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO
---------------------
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN
72
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or hereafter
----------------
granted under applicable law and not by way of limitation of any such rights,
each Lender shall have the right, at any time or from time to time upon the
occurrence and during the continuance of an Event of Default, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, to set off and apply against all
deposits (general or special, time or demand, provisional or final) of the
Borrower at any time held or other obligations at any time owing by such Lender
to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender irrespective of whether such Lender shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender agrees promptly to notify the Administrative Agent and the Borrower after
any such set-off and any application made by such Lender; provided, that the
---------
failure to give such notice shall not affect the validity of such set-off and
application.
Section 10.8. Counterparts; Integration. This Agreement may be executed by
---------------------------
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s) among
the Borrower, SunTrust Bank and SunTrust Capital Markets, Inc. constitute the
entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9. Survival. All covenants, agreements, representations and
---------
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.16, 2.17, 2.18, 10.3 and 10.11 and Article IX shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Commitments or the termination of this Agreement or any
provision hereof. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
other Loan Documents, and the making of the Loans.
Section 10.10. Severability. Any provision of this Agreement or any other
------------
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
73
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the
illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11. Confidentiality. Each of the Administrative Agent and the
----------------
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates',
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential pursuant to the terms hereof),
(b) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to a written agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (x) is publicly available at the time of
disclosure or become publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis other than from any Person known by the
Administrative Agent or Lender, as the case may be, to have made such
information available in violation of a duty of confidentiality owed to the
Borrower or any Subsidiary. For the purposes of this Section, "Information"
means all information received from the Borrower or any Subsidiary relating to
the Borrower or any Subsidiary or its business; provided that, in the case of
information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has observed customary practices and procedures of commercial
banks in respect of confidential information of their customers and otherwise
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information
Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to
-------------------------
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "Charges"), shall exceed the
maximum lawful rate of interest (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by a Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not
74
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Rate to the date of repayment, shall have
been received by such Lender.
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
DOLLAR GENERAL CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
SUNTRUST BANK,
as Administrative Agent
and as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Commitment: $34,333,333
-----------
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent and as a Lender
By /s/ ▇▇▇▇▇▇ ▇. Buterko
------------------------------
Name: ▇▇▇▇▇▇ ▇. Buterko
Title: Associate
By /s/ ▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
Commitment: $16,666,667
-----------
U.S. BANK NATIONAL ASSOCIATION
as Co-Documentation Agent and as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $16,666,667
-----------
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agent and as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Commitment: $16,666,667
-----------
AMSOUTH BANK,
as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $11,666,667
-----------
BANK OF AMERICA, N.A.,
as a Lender
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Director
Commitment: $13,333,333
-----------
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $8,333,333
----------
UNION PLANTERS BANK, N.A.
as a Lender
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $8,333,333
----------
BRANCH BANKING & TRUST CO.,
as a Lender
By /s/ R. ▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: R. ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Commitment: $5,000,000
----------
FIFTH THIRD BANK,
as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Commitment: $5,000,000
----------
NATIONAL CITY BANK,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Commitment: $5,000,000
----------
TRANSAMERICA BUSINESS CAPITAL
CORPORATION, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $5,000,000
----------
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK,
LTD., LOS ANGELES BRANCH, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: SVP & General Manager
Commitment: $2,333,333
----------
BANK OF OKLAHOMA N.A.,
as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $1,666,667
----------
SCHEDULE 1.1-A
APPLICABLE MARGINS AND APPLICABLE PERCENTAGES
---------------------------------------------
Level Debt Rating Applicable Margin Applicable Percentage
----- ----------- ----------------- ---------------------
LIBOR Base Rate
----- ---------
I greater BBB+/Baa1 0.800% 0.000% 0.100%
II BBB/Baa2 0.900% 0.000% 0.150%
III BBB-/Baa3 1.300% 0.000% 0.200%
IV BB+/Ba1 1.800% 0.500% 0.200%
V BB/Ba2 2.050% 0.875% 0.325%
VI greater than BB/Ba2 2.300% 1.250% 0.450%
SCHEDULE 1.1-A
SCHEDULE 1.1-B
MORTGAGED NON-RETAIL PROPERTIES
-------------------------------
PROPERTY CITY STATE
--------------------------------------------------------------------------------
1) Distribution Center Alachua FL
2) Distribution Center Zanesville OH
3) Headquarters Goodlettsville TN
SCHEDULE 1.1-B
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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▇▇ ▇▇▇▇ # ▇▇▇▇▇ # ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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AL HC-00082 1111 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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AL HC-00065 2822 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Atmore Escambia
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▇▇ ▇▇-▇▇▇▇▇ 0703 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 3788 1632 Hwy ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2366 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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AL HC-00113 7101 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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AL HC-00067 3291 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7175 4979 Hwy 17 ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0710 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1642 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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AR CN-00084 2020 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Saline
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AR CN-00085 7026 14 Prospect Court Cabot Lanoke
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AR CN-00100 2730 1305 ▇▇▇▇ ▇▇▇▇ Drive ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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AR CN-00076 1254 609 ▇.▇. ▇▇▇▇▇▇ Loop Road Jacksonville Pulaski
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▇▇ ▇▇-▇▇▇▇▇ 1635 14201 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Blvd. Alachua Alachua
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▇▇ ▇▇-▇▇▇▇▇ 1332 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Hernando
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FL UR-00109 1651 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Bushnell Sumter
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FL UR-00096 1337 1302 ▇. ▇▇▇▇▇ Blvd. Chiefland Levy
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▇▇ ▇▇-▇▇▇▇▇ 7232 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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FL UR-00112 4052 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ UR-00086 7049 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ (Cantonment) Escambia
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▇▇ ▇▇-▇▇▇▇▇ 7141 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
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FL UR-00084 7228 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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▇▇ UR-00088 2877 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Pensacola Escambia
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▇▇ ▇▇-▇▇▇▇▇ 7400 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Mobile Highway Pensacola Escambia
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▇▇ ▇▇-▇▇▇▇▇ 4127 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. Pensacola Escambia
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▇▇ ▇▇-▇▇▇▇▇ 3117 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1265 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00113 1206 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Auburn ▇▇▇▇▇▇
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GA UR-00064 0706 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Early
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▇▇ ▇▇-▇▇▇▇▇ 4800 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2618 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00073 1272 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00036 ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ 129-S Cleveland White
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GA UR-00007 0997 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2386 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ UR-00028 4808 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ UR-00122 7057 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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GA UR-00104 1025 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00105 1266 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00059 3703 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00061 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0630 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ UR-00042 0046 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ UR-00091 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0851 ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00027 4789 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Coffee
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GA UR-00115 3399 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2099 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4655 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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GA UR-00093 1257 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00020 4775 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0780 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇ UR-00005 4572 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ UR-00108 ▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4954 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00021 0076 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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GA UR-00089 0996 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00025 0301 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Schedule 1.1.C Page 2
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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▇▇ ▇▇-▇▇▇▇▇ 4837 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4656 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4792 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7133 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0519 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0126 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ UR-00079 1094 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4882 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1089 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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GA UR-00035 2331 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ UR-00008 4778 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ UR-00077 0738 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00126 7172 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Paulding
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GA UR-00010 1904 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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GA UR-00023 ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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GA UR-00001 4963 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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GA UR-00009 4857 1515 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Pkwy. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4807 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇) ▇▇▇▇▇▇▇
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GA UR-00076 2059 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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GA UR-00040 4856 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Waycross ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0800 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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IA HC-00093 2228 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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IA HC-00132 7234 ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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IA HC-00162 7310 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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IA HC-00092 0111 ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Cass
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IA HC-00128 2578 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Des Moines
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IA HC-00116 7053 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Appanoose
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IA HC-00161 2305 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Page
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IA HC-00118 7138 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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IA HC-00156 7054 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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IA HC-00106 1458 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Black Hawk
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IA HC-00158 7142 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Jefferson
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IA HC-00119 7109 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Poweshiek
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IA HC-00121 2329 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IA HC-00097 3540 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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IA HC-00176 7226 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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IA HC-00103 4206 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IA HC-00109 2019 ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IA HC-00117 2010 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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IA HC-00127 7027 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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IA HC-00104 1536 ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Story
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IA HC-00126 7179 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Wapello
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IA HC-00134 2342 1010 26th Street ▇▇▇▇▇ ▇▇▇▇▇▇
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IA HC-00120 4513 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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IA HC-00133 7136 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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IL CN-00134 7180 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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IL CN-00130 7181 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Coles
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IL CN-00141 7223 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IL CN-00105 2066 ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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IL CN-00111 1452 1200 - 17th Street ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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IL CN-00082 1387 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
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IL CN-00120 7137 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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IN PR-00016 0939 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IN PR-00005 1268 12050 West Washington Street ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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IN PR-00006 2144 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Dubois
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IN PR-00003 4509 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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IN PR-00009 1146 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Ligionier Noble
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IN PR-00007 1140 3121 S.R. 24 Logansport Cass
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IN PR-00013 7035 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇
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IN PR-00012 0155 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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IN PR-00011 2361 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Miami
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IN PR-00002 1269 1299 South ▇▇▇▇▇ Versailles ▇▇▇▇▇▇
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Schedule 1.1-C Page 3
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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▇▇ ▇▇-▇▇▇▇▇ 4470 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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KS HC-00108 1049 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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KS HC-00115 4427 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2537 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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KS HC-00059 1009 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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KS HC-00090 2579 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7224 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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KS HC-00096 7056 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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KS HC-00147 7171 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇ HC-00063 1171 ▇▇▇▇ ▇.▇. Fairlawn Topeka Shawnee
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KS HC-00094 1457 ▇▇▇▇ ▇▇▇▇ ▇▇▇. 24 Wamego Pottawatomie
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▇▇ ▇▇-▇▇▇▇▇ 0859 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Sedgwick
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KY HC-00047 1029 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ HC-00044 0316 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ HC-00043 ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ HC-00114 0338 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ HC-00150 7110 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ HC-00101 1275 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇ Christian
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KY HC-00084 1057 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ HC-00071 1088 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ HC-00089 1459 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vine Grove ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2771 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0759 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0448 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7022 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2884 ▇▇▇▇ ▇▇▇ ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0621 ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1544 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7177 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 3839 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1045 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7023 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Houma Terrebonne Parish
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▇▇ ▇▇-▇▇▇▇▇ 2492 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2740 2115 ▇▇▇▇▇ Blvd. East Slidell St. Tammany Parish
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▇▇ ▇▇-▇▇▇▇▇ 0071 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0777 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0562 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0917 ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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MO CN-00060 7058 2148 NW7 Highway Blue Springs ▇▇▇▇▇▇▇
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MO CN-00114 4338 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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MO CN-00063 1433 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. Jefferson City ▇▇▇▇
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MO CN-00102 1768 1350 ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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MO CN-00115 0404 ▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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MO CN-00061 7102 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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MS BM-00066 7104 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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MS BM-00045 1289 ▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ BM-00008 4928 2768 Highway ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Jasper
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MS BM-00007 1565 125 Swinging Bridge Drive ▇▇▇▇▇ ▇▇▇▇▇
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MS BM-00018 4884 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Coahoma
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MS BM-00004 4711 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Lowndes
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MS BM-00010 1046 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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MS BM-00033 0875 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ BM-00021 0218 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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MS BM-00046 1717 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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MS BM-00048 1039 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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MS BM-00029 0629 28065 Highway 28 Hazlehurst Copiah
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▇▇ ▇▇-▇▇▇▇▇ 2372 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ BM-00003 1296 3322 ▇▇▇▇▇ Road Jackson ▇▇▇▇▇
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MS BM-00041 0942 16180 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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MS BM-00034 1388 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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MS BM-00013 0878 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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MS BM-00011 4742 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Schedule 1.1-C Page 4
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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MS BM-00020 4900 10956 ▇▇▇▇▇▇▇ Boulevard Olive Branch Desoto
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MS BM-00042 0926 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Poplarville Pearl River
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MS BM-00009 4802 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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MS BM-00030 0888 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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MS BM-00015 0667 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Sardis Panola
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MS MB-00044 1169 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Desoto
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MS BM-00064 7025 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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MS BM-00028 1178 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
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MS BM-00006 4710 11980 Highway ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0678 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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MS BM-00012 0894 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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MS BM-00057 0688 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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NC CN-00028 4849 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ CN-00087 ▇▇▇▇ ▇▇▇ ▇. ▇▇ 41 Act. Hwy Beulaville Duplin
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NC CN-00001 4651 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ CN-00078 1236 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Carthage ▇▇▇▇▇
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NC CN-00022 4942 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NC CN-00051 0346 ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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NC CN-00002 4650 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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NC CN-00053 0425 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Surry
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NC CN-00026 4744 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Surry
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NC CN-00052 4943 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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NC CN-00057 0168 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ CN-00136 7144 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Four Oaks ▇▇▇▇▇▇▇▇
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NC CN-00009 4723 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. Gastonia ▇▇▇▇▇▇
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NC CN-00059 0285 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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NC CN-00048 4905 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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NC CN-00041 4886 ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ CN-00027 2782 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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NC CN-00030 4827 ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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NC CN-00081 1442 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ Harnett
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NC CN-00138 7225 ▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NC CN-00011 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ Scotland
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NC CN-00018 4777 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NC CN-00068 0430 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ CN-00025 4791 ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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NC CN-00016 4868 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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NC CN-00023 4818 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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NC CN-00010 4674 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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NC CN-00003 4771 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Stanly
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NC CN-00013 4829 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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NC CN-00047 4899 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ CN-00045 0880 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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NC CN-00075 2449 ▇▇▇ ▇.▇. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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NC CN-00020 4790 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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NC CN-00014 4769 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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NC CN-00056 2906 ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ Stanly
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NC CN-00131 7098 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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NC CN-00058 0801 ▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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NC CN-00015 4873 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ CN-00089 1235 4205 NC Hwy 211 West End ▇▇▇▇▇
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NC CN-00029 4945 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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NC CN-00012 4774 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. Pauls ▇▇▇▇▇▇▇
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NC CN-00039 0869 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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NC CN-00044 4906 1207 East Fifth St. ▇▇▇▇▇ City Columbus
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NC CN-00005 4819 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ CN-00090 3216 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ CN-00034 4977 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Forest Wake
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NC CN-00080 7059 ▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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NC CN-00054 0203 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ Beaufort
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NC CN-00017 4890 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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NC CN-00074 1016 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Schedule 1.1-C Page 5
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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NC CN-00092 7033 ▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 3025 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1542 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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OH ZR-00064 7103 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇ Ashtabula Ashtabula
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OH ZR-00001 4694 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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OH ZR-000066 7028 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4776 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7134 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7107 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Findlay ▇▇▇▇▇▇▇
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OH ZR-00059 1932 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Gallia
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▇▇ ▇▇-▇▇▇▇▇ 0120 100 Commerce Place Geneva Ashtabula
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OH ZR-00046 0994 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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OH ZR-00035 4987 2393 ▇▇▇▇▇▇ ▇▇▇▇ Germantown ▇▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0604 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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OH ZR-00079 7227 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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OH ZR-00063 7030 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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OH ZR-00004 0324 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4740 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2015 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New Bremen Auglaize
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▇▇ ▇▇-▇▇▇▇▇ 0169 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Perry
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OH ZR-00020 0390 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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OH ZR-00006 4741 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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OH ZR-00003 4673 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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OH ZR-00067 7029 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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OH ZR-00034 1241 5055 College Corner Pike Oxford Butler
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OH ZR-00050 0539 ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Licking
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OH ZR-00019 2779 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Paulding Paulding
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OH ZR-00007 4779 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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OH ZR-00011 2260 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 7099 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Saint Mary's Auglaize
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▇▇ ▇▇-▇▇▇▇▇ 1450 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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OH ZR-00053 1955 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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OH ZR-00033 0360 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. Upper Sandusky Wyandot
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OH ZR-00056 2047 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Courthouse Fayette
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OH ZR-00010 4739 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
▇▇ ZR-00040 1043 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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OK HC-00036 4984 217 N.E. Tenth ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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OK HC-00064 0294 ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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OK HC-00038 0208 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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OK CH-00040 0633 ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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OK HC-00039 7051 1305 South Main Kingfisher Kingfisher
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OK HC-00049 0122 ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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OK HC-00037 0132 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Pottawatomie
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▇▇ ▇▇-▇▇▇▇▇ 4865 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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PA ZR-00036 ▇▇▇▇ ▇▇. ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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PA ZR-00048 7139 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
PA ZR-00021 4986 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0316 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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PA ZR-00042 0270 1700 Peach Street Erie Erie
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PA ZR-00024 4940 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
PA ZR-00028 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
PA ZR-00045 2940 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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PA ZR-00044 1271 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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PA ZR-00023 2203 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mount ▇▇▇ ▇▇▇▇▇▇▇▇▇
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PA ZR-00047 7032 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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PA ZR-00018 4903 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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PA ZR-00065 7108 ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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PA ZR-00039 1059 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ ZR-00029 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0149 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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PA ZR-00051 1449 5034 ▇▇▇▇ Drive Mechanicsburg Cumberland
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PA ZR-00025 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Schedule 1.1-C Page 6
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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▇▇ ▇▇-▇▇▇▇▇ 7024 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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PA ZR-00030 2993 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 2640 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Barnwell ▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 3253 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ UR-00103 1165 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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SC UR-00052 4914 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1448 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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SC UR-00062 0736 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Berkeley
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SC UR-00081 3044 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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SC UR-00048 8376 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4983 ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 1142 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ Manning Clarendon
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SC UR-00102 1203 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ UR-00056 3629 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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SC UR-00071 0317 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SC UR-00049 3218 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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SC CN-00008 4772 ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. Pageland Chesterfield
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▇▇ ▇▇-▇▇▇▇▇ 0163 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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SC UR-00094 3635 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Jasper
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▇▇ ▇▇-▇▇▇▇▇ 4866 ▇▇▇▇ ▇▇▇ #▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 4799 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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SC UR-00039 4913 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ UR-00043 4862 ▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TN HC-00046 0881 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TN HC-00087 1252 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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TN CP-00019 4781 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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TN HC-00045 2004 ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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TN HC-00088 ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TN HC-00085 1443 ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TN HC-00167 1769 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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TN BM-00024 0166 5083 Raleigh-LaGrange Rd Memphis Shelby
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TN BM-00025 4482 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TN HC-00078 0870 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TN HC-00054 0207 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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TN HC-00056 1021 ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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TN HC-00051 0204 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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TN DG-00001 0150 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Davidson
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TN CP-00021 0740 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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TN HC-00076 2310 ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TN HC-00072 1540 7601 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Knoxville ▇▇▇▇
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TN HC-00074 1082 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Signal Mountain ▇▇▇▇▇▇▇▇
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TX HC-00129 7176 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Tarrant
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TX HC-00141 7145 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX HC-00077 1222 ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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TX CP-00028 0828 ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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TX CP-00029 4804 303 N.W. Loop Carthage Panola
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TX CP-00010 4904 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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TX CP-00016 7034 Farm to Market St Corpus Christi Nueces
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TX CP-00005 4782 200 ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tarrant
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TX HC-00079 0417 ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX HC-00153 7050 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX HC-00180 1577 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ CP-00031 4901 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Freestone
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TX CP-00006 4738 1601 ▇. ▇▇▇▇▇▇ Street Granbury Hood
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TX CP-00008 0600 604 E. Pioneer Parkway Grand Prairie Dallas
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TX CP-00026 4803 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ Gun Barrell Henderson
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TX CP-00022 ▇▇▇▇ ▇▇▇ ▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ ▇▇-▇▇▇▇▇ 0632 ▇▇▇ ▇▇▇ ▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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TX HC-00069 0525 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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TX HC-00198 ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TX HC-00091 7170 400 S. Nursery Rd. Irving Dallas
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TX CP-00007 4975 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Schedule 1.1-C Page 7
SCHEDULE 1.1-C
MORTGAGED RETAIL PROPERTIES
---------------------------
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TX HC-00050 0802 2221 ▇. ▇▇▇▇▇▇▇▇▇▇ St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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TX CP-00024 0833 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ Jasper
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TX CP-00001 4692 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX CP-00003 4606 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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TX CP-00004 0995 1707 Deans Way ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TX HC-00052 0259 1016 S. 3rd St Mabank Henderson
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TX HC-00048 0515 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇ CP-00018 2663 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇ Mineloa Wood
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TX CP-00023 0653 927 N. University Dr. Nacogdoches Nacogdoches
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TX HC-00042 4956 ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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TX HC-00041 0555 ▇▇▇ ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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TX HC-00143 7135 702 East 120 Pottsboro ▇▇▇▇▇▇▇
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TX HC-00020 4743 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. Red Oak ▇▇▇▇▇
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TX HC-00123 4540 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇ HC-00151 7105 6502 S. Hwy 78 ▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX HC-00033 4955 1006 N. Fifth ▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX CP-00025 0839 ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TX CP-00002 4684 6546 Watanga Watanga Tarrant
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TX HC-00144 7055 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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TX CP-00030 0687 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇ CP-00017 4780 ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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VA CN-00103 1386 ▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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VA CN-00098 7060 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
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VA CN-00133 7106 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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VA CN-00129 0474 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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VA CN-00118 7031 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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VA CN-00096 1747 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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VA CN-00091 1543 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. Newport News *
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VA CN-00077 1360 ▇▇. ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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VA CN-00067 0879 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Locust Grove Orange
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VA CN-00065 0481 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Parksley Accomack
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VA CN-00050 0375 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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VA CN-00049 2285 ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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VA CN-00043 0339 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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VA CN-00040 0583 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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VA CN-00037 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Crew Nottoway
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VA CN-00033 0484 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Blackstone Nottoway
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VA CN-00021 2581 ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Page
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VA CN-00019 0439 2900 King ▇▇▇▇▇▇▇ Avenue West Point King ▇▇▇▇▇▇▇
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WVA CN-00117 4445 7131 ▇▇▇▇▇▇ Road ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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WVA CN-00079 0383 ▇▇▇ #▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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WVA CN-00064 1008 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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* Please note that everything is filed in the City of Newport News
SCHEDULE 1.1-C Page 8
SCHEDULE 4.1
EXISTENCE; POWER
----------------
As disclosed in Section 4.8(b), the Borrower and certain of its Subsidiaries
have failed to file certain information with certain governmental and state
authorities. As a result of this failure to provide information, the Borrower
and certain of its Subsidiaries may not be in good standing in the states listed
on this Schedule 4.1.
Borrower/Subsidiary State Reason
--------------------------------------------------------------------------------
DG Logistics, LLC TN Unfiled franchise tax returns
Dolgencorp of TX TX Unfiled franchise tax returns
Dollar General Financial, Inc. TN Unfiled franchise tax returns
Dolgencorp, Inc. TN Unfiled franchise tax returns
Nations Title Company, Inc. TN Unfiled franchise tax returns
Schedule 4.1
SCHEDULE 4.5
LITIGATION AND ENVIRONMENTAL MATTERS
------------------------------------
EXISTING LITIGATION
-------------------------------------------------------------------------
None
Schedule 4.5
SCHEDULE 4.10
ERISA MATTERS
-------------
EXISTING ERISA MATTERS
--------------------------------------------------------------------------------
Dollar General Corporation Retiree Medical Plan - Medical and Rx coverage
for officers of the corporation. The eligibility requirement is age 45 or 5
years of service. Coverage terminates when retiree becomes Medicare
eligible; death of employee; employee has access to other group coverage
through an employer.
Schedule 4.10
SCHEDULE 4.16
SUBSIDIARIES
------------
JURISDICTION OF
INCORPORATION/
NO. ENTITY ORGANIZATION OWNERSHIP OF CAPITAL STOCK/PARTNERS/MEMBERS TYPE
------------------------------------------------------------------------------------------------------------------------------------
1 Dolgencorp, Inc. Kentucky Dollar General Corporation Corporation
2 Dolgencorp of Texas, Inc. Kentucky Dolgencorp, Inc. Corporation
3 Dade Lease Management, Inc. Delaware Dollar General Corporation Corporation
4 The Greater Cumberland Insurance Vermont Dollar General Financial, Inc. Corporation
Company
5 Dollar General Financial, Inc. Tennessee Dollar General Corporation Corporation
6 Dollar General Intellectual Vermont Dade Lease Management, Inc. - General Partner Limited partnership
Property, LP The Greater Cumberland Insurance Company -
Limited Partner
7 Dollar General Partners Kentucky Dolgencorp, Inc. - General Partner General partnership
Dade Lease Management, Inc. - General Partner
Dollar General Financial, Inc. - General Partner
8 Dolgencorp of New York, Inc. Kentucky Dolgencorp, Inc. Corporation
9 DG Logistics, LLC Tennessee Dolgencorp, Inc. Limited liability company
10 Dollar General Stores, Ltd. Kentucky Dolgencorp, Inc. - General Partner Limited partnership
Dade Lease Management, Inc. - Limited Partner
11 Nations Title Company, Inc. Tennessee Dollar General Financial, Inc. Corporation
12 Dollar General Properties LLC Delaware Dolgencorp, Inc. Limited liability company
13 Dollar General Properties of Delaware Dollar General Partners Limited liability company
Kentucky, LLC
14 Dollar General Investment, Inc. Delaware Dollar General Corporation Corporation
Schedule 4.16
SCHEDULE 7.1
EXISTING INDEBTEDNESS
---------------------
AMOUNT
NO. EXISTING INDEBTEDNESS AS OF MAY 3, 2002 $ IN THOUSANDS
-------------------------------------------------------------------------------------------------------------------------
1 Indenture dated as of June 21, 2000 between Dollar General Corporation as Issuer, $200,000
the Guarantors and First Union National Bank as Trustee, governing the Borrower's
8 5/8% Notes due June 15, 2010
2 Lease and Agreement dated as of April 30, 1997 between Sun-Dollar, L.P. as Landlord $53,121
and Dollar General Corporation as Tenant (South Boston, VA distribution center);
(Capital Lease Obligation)
3 Lease dated as of January 19, 1999 between DG Ardmore, LLC as Landlord and $42,365
Dollar General Corporation as Tenant (Ardmore, OK distribution center)
(Capital Lease Obligation)
4 Lease Agreement dated as of June 1, 2000 between FU/▇▇ ▇▇▇▇▇▇, LLC as Lessor and $14,873
Dollar General Corporation as Lessee (Fulton, MO distribution center)
(Capital Lease Obligation)
5 Lease Agreement dated as of June 1, 2000 between FU/DG Indianola, LLC as Lessor $10,321
and Dollar General Corporation as Lessee (Indianola, MS distribution center)
(Capital Lease Obligation)
6 Equipment Lease dated as of July 28, 1999 between First Union Commercial $8,216
Corporation as Lessor and Dollar General Corporation as Lessee
(Capital Lease Obligation for airplane)
7 Term Lease Master Agreement dated as of November 14, 1994 between IBM Credit $28,486
Corporation as Lessor and Dollar General Corp as Lessee
(Capital Lease Obligation)
8 Standby letter of credit, Bank of America as Issuer, Dollar General Corporation $1,959
as Applicant and National Union Fire Insurance as Beneficiary - (face amount)
9 Standby letter of credit, Bank of America as Issuer, Dollar General Corporation $135
as Applicant and Ace American Insurance Group as Beneficiary - (face amount)
10 Standby letter of credit line, Farmers National Bank as lender and Dollar General $98
Corporation as borrower ($250 line of credit; $98 face amount)
11 Interest Rate Swap Transaction dated as of July 20, 1999 between Dollar General $922
Corporation and SunTrust Bank, Atlanta, expiring September 1, 2002
($100,000 notional amount; $922 termination cost)
12 Promissory Notes to ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated as of October 7, 1977 $39
(Outstanding principal amount)
13 Intercompany indebtedness
Schedule 7.1
SCHEDULE 7.2
EXISTING LIENS
--------------
NO. EXISTING LIENS ($ IN THOUSANDS)
----------------------------------------------------------------------------------------------
1 - 7 Leases described in items 1 through 7 of Schedule 7.1
8 Cash collateral under the Cash Collateral Agreement between
Dolgencorp, Inc. and ▇.▇. ▇▇▇▇▇▇▇▇ Trust in the amount of $1,551 as of May 31, 2002
9 Security interests granted in goods that are the subjects of drafts drawn under the
trade letters of credit issued pursuant to the FUNB Group Irrevocable Commercial
Letter of Credit Agreement Terms and Conditions
10 Security interests granted in goods that are the subjects of drafts drawn under the
trade letters of credit issued pursuant to the Continuing Documentary Credit
Agreement between Dolgencorp, Inc. and Continental Bank N.A.
11 The Greater Cumberland Insurance Company cash collateral in the amount of $250 as
May 31, 2002
12 Collateral for workers' compensation claims - Texas Workers' Compensation
Commission in the amount of $3,800 as of May 31, 2002
Schedule 7.2
SCHEDULE 7.4
INVESTMENTS
-----------
EXISTING INVESTMENTS ($ IN THOUSANDS)
----------------------------------------------------------------------
Promissory Note between Standard Candy Company, Inc.
as Maker and Dolgencorp, Inc. in the amount of $389 as
of May 3, 2002
Schedule 7.4
EXHIBIT A
---------
FORM OF 364-DAY REVOLVING CREDIT NOTE
-------------------------------------
[$___________] Atlanta, Georgia
June __, 2002
FOR VALUE RECEIVED, the undersigned, DOLLAR GENERAL CORPORATION, a Tennessee
corporation (the "Borrower"), hereby promises to pay to the order of [NAME OF
LENDER] (the "Lender"), for the account of its Applicable Lending Office, at the
office of SunTrust Bank, as Administrative Agent (the "Administrative Agent"),
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Commitment
Termination Date, the principal sum of [amount of such Lender's Commitment] or,
if less, the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to the Credit Agreement described below, in lawful
money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, the
Borrower further promises to pay all costs of collection, including the
reasonable attorneys' fees of the Lender, if any amounts evidenced by this Note
are collected by or through an attorney-at-law or in bankruptcy or other
judicial proceedings.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and the date thereof shall be endorsed by the holder hereof
on the schedule attached hereto and made a part hereof or on a continuation
thereof which shall be attached hereto and made a part hereof, or otherwise
recorded by such holder in its internal records; provided, that the failure of
---------
the holder hereof to make such a notation or any error in such notation shall
not affect the obligations of the Borrower to make the payments of principal and
interest in accordance with the terms of this Note and the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the 364-Day Revolving Credit Agreement dated as of June __, 2002,
among the Borrower, the Lender and certain other lenders parties thereto, the
Administrative Agent, Credit Suisse First Boston, as Syndication Agent, and
KeyBank National Association and U.S. Bank National Association, as
Co-Documentation Agents (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the capitalized terms that
are defined in the Credit Agreement being used in this Note with the respective
meanings assigned to such capitalized terms in the Credit Agreement). The Credit
Agreement contains, among other things, provisions for the acceleration of the
maturity hereof upon the happening of certain events, for prepayment of the
principal hereof prior to the maturity hereof and for the amendment or waiver of
Exhibit A - 1
certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified.
THIS NOTE HAS BEEN EXECUTED AND DELIVERED BY THE BORROWER IN ATLANTA,
GEORGIA, AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
DOLLAR GENERAL CORPORATION
---------------------------
Name:
Title:
Exhibit A - 2
LOANS AND PAYMENTS
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Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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Exhibit A - 3
EXHIBIT B
---------
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
Reference is made to the 364-Day Revolving Credit Agreement, dated as of
June ___, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Dollar General Corporation, a corporation
------------------
organized under the laws of Tennessee (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties thereto (the
"Lenders"), SunTrust Bank, as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"), Credit Suisse First Boston, as
Syndication Agent for the Lenders, and U.S. Bank National Association and
KeyBank National Association, as Co-Documentation Agents for the Lenders. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any obligor or the performance or
observance by the Borrower or any obligor of any of its obligations under the
Credit Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Facilities and [(i)] requests that the Administrative
Agent, upon request by the Assignee, exchange the attached Notes, if any, for a
new Note or Notes payable to the Assignee [and (ii) if the Assignor has retained
any interest in an Assigned Facility, requests that the Administrative Agent
exchange the attached Notes, if any, for a new Note or Notes payable to the
Assignor, in each case] in amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
Exhibit B-1
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement and each other Loan Document which such Assignee
has requested, together with copies of the financial statements delivered
pursuant to Section 4.4 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligations pursuant to Section 2.18
of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent). Assignee represents to
each other party hereto that it is a bank, savings and loan association or other
similar savings or thrift institution, insurance company, investment fund or
company, or other financial institution or lending company that makes or
acquires commercial loans in the ordinary course of its business and that it is
participating in the Credit Agreement as a Lender for its own account (but
subject to its rights to direct the disposition of its assets, including,
without limitation, assignments and sales of participation interest in the Loans
and its Commitment as contemplated in the Credit Agreement and for such
commercial purposes, and that it has knowledge and experience to be and is
capable of evaluating the merits and risks of being a Lender under the Credit
Agreement.
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) [to
the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date] [to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.]
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound
Exhibit B-2
by the provisions thereof and (b) the Assignor shall, to the extent provided in
this Assignment and Acceptance and the Credit Agreement, relinquish its rights
and be released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Georgia.
8. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Exhibit B-3
Schedule 1
to Assignment and Acceptance
Name of Assignor: ____________________________________________
Name of Assignee: ____________________________________________
Effective Date of Assignment: ________________________________
Credit Facility Assigned Principal Amount Assigned Commitment Percentage
------------------------ ------------------------- ---------------------
Assigned
Revolving Credit Facility $________________ ________%
[Name of Assignee] [Name of Assignee]
By:___________________________________ By:_________________________________
Title Title
Exhibit B-4
Accepted: Consented to (if required pursuant
to the Credit Agreement):
SUNTRUST BANK,
as Administrative Agent DOLLAR GENERAL CORPORATION
By:___________________________________ By:_________________________________
Title Title
Exhibit B-5
EXHIBIT C
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FORM OF GUARANTY AGREEMENT
--------------------------
THIS GUARANTY AGREEMENT (this "Guarantee") made and delivered as of June
___, 2002, by each of the Subsidiaries of Dollar General Corporation, a
Tennessee corporation, identified on the signature pages of this Guarantee (each
a "Guarantor" and collectively the "Guarantors") in favor of (i) each of the
Lenders from time to time parties to the Credit Agreement described below (each
a "Lender" and collectively the "Lenders"), and (ii) SUNTRUST BANK, in its
capacities as Administrative Agent and Collateral Agent under the terms of the
Credit Agreement and the other Loan Documents referred to in the Credit
Agreement (in such capacities, the "Administrative Agent" and the "Collateral
Agent" respectively; the Lenders, the Administrative Agent and Collateral Agent
collectively referred to herein as the "Guaranteed Parties").
W I T N E S S E T H:
--------------------
WHEREAS, Borrower, the Lenders, the Administrative Agent, Credit Suisse
First Boston, as Syndication Agent, and U.S. Bank National Association and
KeyBank National Association, as Co-Documentation Agents, are parties to a
certain 364-Day Revolving Credit Agreement dated as of June ___, 2002 (as the
same may be amended, restated, and supplemented from time to time, the "Credit
Agreement"; capitalized terms used in this Guarantee that are defined in the
Credit Agreement being used herein with the respective meanings given to such
capitalized terms in the Credit Agreement);
WHEREAS, it is a condition to the Lenders' obligation to make Loans to
Borrower as provided in the Credit Agreement that each Guarantor, as a
subsidiary of Borrower, unconditionally guarantee the payment of the Loans and
all other Obligations of Borrower as provided in the Loan Documents (the Loans
and such other Obligations being herein collectively referred to as the
"Guaranteed Obligations"; the term "Guaranteed Obligations" to include, without
limitation (i) all principal and interest due with respect to all Loans
outstanding under the terms of the Credit Agreement, including, without
limitation, interest accruing or that would have accrued after the filing of a
petition in bankruptcy or other insolvency proceeding (whether or not such claim
for interest is allowed or allowable in such proceeding), and all obligations
and liabilities of Borrower arising pursuant to any interest rate protection or
swap agreements entered into with one or more of the Lenders, (ii) all fees,
expenses, amounts payable by Borrower for reimbursement or indemnification under
the terms of the Credit Agreement and any other Loan Document, and all amounts
advanced by any of the Guaranteed Parties to protect or preserve the value of
any security for the Loans and other Guaranteed Obligations, and (iii) all
renewals, extensions, modifications, and refinancings (in whole or in part) of
any of the amounts referred to in clauses (i) and (ii) above);
WHEREAS, the making of the Loans will result in direct and substantial
benefits to each Guarantor.
Exhibit C-1
NOW, THEREFORE, in order to induce the Guaranteed Parties to make the Loans
and otherwise to extend and continue to extend credit to Borrower hereafter, and
in consideration of $10.00 and other good and valuable consideration received by
Guarantor, each Guarantor hereby declares and agrees:
1. Each Guarantor hereby unconditionally and irrevocably guarantees to the
Guaranteed Parties, and any transferee of any of the Guaranteed Obligations,
jointly and severally, the full and prompt payment of all Guaranteed Obligations
and all costs, charges and expenses (including reasonable attorneys' fees)
incurred or sustained by the Guaranteed Parties in enforcing the obligations of
such Guarantor hereunder. If any portion of the Guaranteed Obligations is not
paid when due, each Guarantor hereby agrees to and will immediately pay same,
without resort by the Guaranteed Parties to any other person or party. The
obligation of each Guarantor to the Guaranteed Parties hereunder is primary,
absolute and unconditional, except as may be specifically set forth herein. Any
and all payments by each Guarantor hereunder shall be made free and clear of,
and without deduction for, any set-off, counterclaim, recoupment, or withholding
so that, in each case, each Guaranteed Party will receive, after giving effect
to any Taxes (other than taxes applicable to the Guaranteed Party of the types
described in the definition of "Excluded Taxes" as set forth in the Credit
Agreement), the full amount that it would otherwise be entitled to receive with
respect to the Guaranteed Obligations (but without duplication of amounts for
Taxes already included in the Guaranteed Obligations). Each Guarantor
acknowledges and agrees that this is a guarantee of payment when due, and not of
collection.
2. This Guarantee is continuing in nature and shall be effective with
respect to the full amount outstanding under all Guaranteed Obligations, now
existing or hereafter made or extended, and notwithstanding (i) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
like proceeding relating to any Guarantor or Borrower, or any action taken with
respect to this Guarantee by any trustee or receiver, or by any court, in any
such proceeding, (ii) any lack of validity or enforceability of the Credit
Agreement or the other Loan Documents, or (iii) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Guarantor. Each Guarantor acknowledges and agrees that the number and amounts of
outstanding Guaranteed Obligations may fluctuate from time to time hereafter,
and that Borrower may make payments to the Guaranteed Parties from time to time
hereafter. Each Guarantor expressly agrees that this Guarantee shall continue in
full force and effect notwithstanding such fluctuations and payments, and
whether or not any Guaranteed Obligations are outstanding at any particular
time, until such time as all Guaranteed Obligations have been paid in full and
any commitment of the Guaranteed Parties under the Credit Agreement has been
terminated.
3. Each Guarantor hereby waives notice of the Guaranteed Parties'
acceptance of this Guarantee and the creation, extension or renewal of any Loans
or other Guaranteed Obligations. Each Guarantor hereby consents and agrees that,
at any time or times, without notice to or further approval from Guarantor, and
without in any way affecting the obligations of such Guarantor hereunder, the
Guaranteed Parties may, with or without consideration (i) release, compromise
with, or agree not to ▇▇▇, in whole or in part, Borrower or any other obligor,
guarantor, endorser or surety on any Loans or any other Guaranteed Obligations,
(ii) renew, extend, accelerate, or increase or decrease the principal amount of
any Loans or other Guaranteed Obligations, either in whole or in part, (iii)
amend, waive,
Exhibit C-2
or otherwise modify any of the terms of any Loans or other Guaranteed
Obligations or of any mortgage, deed of trust, security agreement, or other
undertaking of Borrower or any other obligor, endorser, guarantor or surety in
connection with any Loans or other Guaranteed Obligations, and (iv) apply any
payment received from Borrower or from any other obligor, guarantor, endorser or
surety on the Loans or other Guaranteed Obligations to any of the liabilities of
Borrower or of such other obligor, guarantor, endorser, or surety which the
Guaranteed Parties may choose.
4. Each Guarantor hereby consents and agrees that the Guaranteed Parties
may at any time or times, either with or without consideration, surrender,
release or receive any property or other collateral of any kind or nature
whatsoever held by it or for its account securing any Loans or other Guaranteed
Obligations, or substitute any collateral so held by the Guaranteed Parties for
other collateral of like or different kind, without notice to or further consent
from such Guarantor, and such surrender, receipt, release or substitution shall
not in any way affect the obligations of such Guarantor hereunder. The
Guaranteed Parties shall have full authority to adjust, compromise, and receive
less than the amount due upon any such collateral, and may enter into any accord
and satisfaction agreement with respect to the same as the Guaranteed Parties
may deem advisable without affecting the obligations of such Guarantor
hereunder. The Guaranteed Parties shall be under no duty to undertake to collect
upon such collateral or any part thereof, and no Guarantor's obligations
hereunder shall be affected by the Guaranteed Parties' alleged negligence or
mistake in judgment in handling, disposing of, obtaining, or failing to collect
upon or perfect a security interest in, any such collateral.
5. Each Guarantor hereby waives presentment, demand, protest, and notice of
dishonor of any of the liabilities guaranteed hereby. The Guaranteed Parties
shall have no duty or obligation (i) to proceed or exhaust any remedy against
Borrower, any other obligor, guarantor, endorser, or surety on any Loans or
other Guaranteed Obligations, or any other security held by the Guaranteed
Parties for any Loans or other Guaranteed Obligations, or (ii) to give any
notice whatsoever to Borrower, any Guarantor, or any other obligor, guarantor,
endorser, or surety on any Loans or other Guaranteed Obligations, in any case
before bringing suit, exercising rights to any such security or instituting
proceedings of any kind against any Guarantor, Borrower, or any of them, and
each Guarantor hereby waives any requirement for such actions by the Guaranteed
Parties. Upon default by Borrower and the Guaranteed Parties' demand to any
Guarantor hereunder, such Guarantor shall be held and bound to the Guaranteed
Parties directly as principal debtor in respect of the payment of the amounts
hereby guaranteed, such liability of such Guarantor being joint and several with
Borrower, each other Guarantor, and all other obligors, guarantors, endorsers
and sureties on the Loans or other Guaranteed Obligations.
6. Each Guarantor hereby waives to the fullest extent possible as against
Borrower and its assets, any and all rights, whether at law, in equity, by
agreement or otherwise, to subrogation, indemnity, reimbursement, contribution,
payment or any other claim, cause of action, right or remedy that would
otherwise arise out of any payment by such Guarantor hereunder, notwithstanding
the manner or nature of such payment including but not limited to (a) direct
payment by such Guarantor, (b) set-off by the Administrative Agent or any Lender
against any liability or deposit owed by such entity to such Guarantor, (c)
recovery by the
Exhibit C-3
Administrative Agent or any Lender against such Guarantor or any property of
such Guarantor, as the result of any judgment, judgment lien, or legal process,
(d) the application of the proceeds of any disposition of all or any part of the
collateral to the repayment or all or any part of the Guaranteed Obligations, or
(e) the conveyance of all or any part of any Collateral to the Administrative
Agent or the Lenders in satisfaction of all or any part of the Guaranteed
Obligations, until the indefeasible payment in full of the Guaranteed
Obligations. The waivers set forth above are intended by each Guarantor, the
Administrative Agent, and the Lenders to be for the benefit of Borrower and such
waivers shall be enforceable by Borrower as an absolute defense to any action by
such Guarantor against Borrower or its assets which action arises out of any
payment by any Guarantor hereunder.
7. As an independent covenant, each Guarantor hereby expressly covenants
and agrees for the benefit of the Guaranteed Parties that all obligations and
liabilities of Borrower and any other Subsidiaries of Borrower to any Guarantor
of whatsoever description, including without limitation, all intercompany
receivables of such Guarantor from Borrower and any such other Subsidiaries
(collectively, the "Junior Claims") shall be subordinate and junior in right of
payment to all obligations of Borrower and any such other Subsidiaries to the
Guaranteed Parties under the terms of the Credit Agreement, this Guarantee, and
the other Loan Documents (collectively, the "Senior Claims"). If an Event of
Default shall occur, then, unless and until such Event of Default shall have
been cured, waived, or shall have otherwise ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) shall
be made by Borrower and any such other Subsidiaries to any Guarantor on account
of or in any manner in respect of any Junior Claim except such payments and
distributions the proceeds of which shall be applied to the payment of Senior
Claims.
In the event of a Proceeding (as hereinafter defined), all Senior Claims
shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities, by set-off or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For purposes of the immediately
preceding sentence, "Proceeding" means Borrower or any Guarantor shall commence
a voluntary case concerning itself under the United States Bankruptcy Code or
any other applicable bankruptcy laws; or any involuntary case is commenced
against Borrower or any Guarantor; or a custodian (as defined in the Bankruptcy
Code or any other applicable bankruptcy laws) is appointed for, or takes charge
of, all or any substantial part of the property of Borrower or any Guarantor, or
Borrower or any Guarantor commences any other proceedings under any
reorganization, arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether commenced
against Borrower or any Guarantor, or Borrower or any Guarantor is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or Borrower or any Guarantor suffers any
appointment of any custodian or the like for it or any substantial part of its
property; or Borrower or any Guarantor makes a general assignment for the
benefit of creditors; or Borrower or any Guarantor shall fail to pay, or shall
state that it is unable to pay, or shall be unable to pay, its debts generally
as they become due; or Borrower or any Guarantor shall call a meeting of its
Exhibit C-4
creditors with a view to arranging a composition or adjustment of its debts; or
Borrower or any Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or any
organizational action shall be taken by Borrower or any Guarantor for the
purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to a
Guarantor in contravention of this Section 7, such payment or distribution shall
be deemed received in trust for the benefit of the Guaranteed Parties and shall
be immediately paid over to the Administrative Agent for application against the
Guaranteed Obligations in accordance with the terms of the Credit Agreement
Each Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 7.
8. (a) Upon the occurrence of an Event of Default specified in Section
8.1(g) or (h) of the Credit Agreement with respect to the Borrower, all
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantors, without notice or other action on the part of the Guaranteed
Parties, and regardless of whether payment of the Guaranteed Obligations by
Borrower has then been accelerated. In addition, if any event of the types
described in Section 8.1(g) or (h) of the Credit Agreement should occur with
respect to any Guarantor, and the Guaranteed Obligations of the Borrower have or
thereafter become due and payable, then the Guaranteed Obligations shall
automatically become immediately due and payable by such Guarantor, without
further notice or other action on the part of the Guaranteed Parties.
(b) Upon the insolvency or bankruptcy of Borrower, the Guaranteed Parties'
rights hereunder shall not be affected or impaired by their omission to prove
all or any portion of its claim, and the Guaranteed Parties may in its
discretion value or refrain from valuing any security held by it without in any
way releasing, reducing or otherwise affecting any Guarantor's obligations
hereunder. Each Guarantor agrees that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
the liabilities hereby guaranteed are rescinded or must otherwise be returned or
restored by the Guaranteed Parties upon the insolvency or bankruptcy of Borrower
or any other obligor, guarantor, endorser or surety on any Loans or other
Guaranteed Obligations, all as though such payment had not been made.
9. This Guarantee is in addition to, and is not intended to supersede or be
a substitute for any other guarantee, suretyship agreement, or instrument which
the Guaranteed Parties may hold in connection with any Loans or other Guaranteed
Obligations and each Guarantor's obligations hereunder shall be deemed to be
joint and several with the obligations of each other Guarantor.
10. This Guarantee contains the entire agreement between the parties
relating to the subject matter hereof, and no provision hereof may be waived or
modified except by a writing executed by each Guarantor and the Guaranteed
Parties. There is no understanding that any person other than the Guarantors
shall execute this or any similar Guarantee. No
Exhibit C-5
Guarantor's execution of this
Guarantee was based upon any facts or materials provided by the Guaranteed
Parties, nor was any Guarantor induced to execute this Guarantee by any
representation, statement or information made or furnished by the Guaranteed
Parties. Each Guarantor further acknowledges and agrees that such Guarantor
assumes sole responsibility for independently obtaining any information or
reports deemed necessary by such Guarantor in reaching any decision to execute
this Guarantee.
11. The failure or forbearance of the Guaranteed Parties on any occasion to
exercise any rights or remedies hereunder or otherwise granted to it by law or
another agreement shall not affect the obligations of any Guarantor hereunder
and shall not constitute a waiver of such right or remedy or preclude the later
or further exercise thereof. Time is of the essence of this Guarantee and each
Guarantor's obligations hereunder.
12. Any notice or demand which the Guaranteed Party's may be required to
give to any Guarantor may be sent or made, at any Guaranteed Parties' option, to
or on such Guarantor in the same manner and with the same effect as provided
with respect to notices pursuant to Section 10.1 of the Credit Agreement, when
delivered, mailed or sent by telecopy to the address or telecopier number
indicated for such Guarantor below.
13. This Guarantee shall bind and inure to the benefit of the respective
successors and assigns of each Guarantor and the Guaranteed Parties.
14. If any provision of this Guarantee or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Guarantee or the application of such provision to the other
persons or circumstances, other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this
Guarantee shall be valid and enforceable to the full extent permitted by law.
15. In addition to and not in limitation of all rights of set-off that the
Guaranteed Parties may have under applicable law, the Guaranteed Parties shall,
upon the occurrence of any Event of Default and whether or not the Guaranteed
Parties have made any demand or the Guaranteed Obligations are matured, have the
right to appropriate and apply to the payment of the Guaranteed Obligations all
deposits of any Guarantor (general or special, time or demand, provisional or
final) then or thereafter held by, and other indebtedness or property then or
thereafter owing to any Guarantor by, any of the Guaranteed Parties whether or
not related to this Guarantee or any transaction hereunder.
16. (a) It is the intent of each Guarantor and the Guaranteed Parties that
each Guarantor's maximum obligations hereunder shall be:
(i) in a case or proceeding commenced by or against such Guarantor under the
Bankruptcy Code on or within one year from the date on which any of the
Guaranteed Obligations are incurred, the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Guaranteed Parties) to be avoidable or unenforceable against
such Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent
Exhibit C-6
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code subsequent to one year from the date on which any
of the Guaranteed Obligations are incurred, the maximum amount which would
not otherwise cause the Guaranteed Obligations (or any other obligations of
the Guarantor to the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue
of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise
cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability
of the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 16(a), but only to the extent that the
Guaranteed Obligations would otherwise be subject to avoidance under the
Avoidance Provisions if such Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Guaranteed
Obligations, or if the Guaranteed Obligations would render the Guarantor
insolvent, or leave the Guarantor with an unreasonably small capital to conduct
its business, or cause the Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the Guaranteed Obligations are deemed to have
been incurred under the Avoidance Provisions and after giving effect to
contribution as among Guarantors, the maximum Guaranteed Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
after giving effect thereto, would not cause the Guaranteed Obligations (or any
other obligations of such Guarantor to the Guaranteed Parties), as so reduced,
to be subject to avoidance under the Avoidance Provisions. This Section 16(b) is
intended solely to preserve the rights of the Guaranteed Parties hereunder to
the maximum extent that would not cause the Guaranteed Obligations of any
Guarantor to be subject to avoidance under the Avoidance Provisions, and neither
such Guarantor nor any other Person shall have any right or claim under this
Section 16 as against the Guaranteed Parties that would not otherwise be
available to such Person under the Avoidance Provisions.
Exhibit C-7
(c) None of the provisions of this Section 16 are intended in any manner to
alter the obligations of any holder of subordinated Indebtedness or the rights
of the holders of "senior indebtedness" as provided by the terms of the
subordinated Indebtedness. Accordingly, it is the intent of each of the
Guarantors that, in the event that any payment or distribution is made with
respect to the subordinated Indebtedness prior to the payment in full of the
Guaranteed Obligations by virtue of the provisions of this Section 16, in any
case or proceeding of the kinds described in clauses (i)-(iii) of Section 16(a),
the holders of the subordinated Indebtedness shall be obligated to pay or
deliver such payment or distribution to or for the benefit of the Guaranteed
Parties. Furthermore, in respect of the Avoidance Provisions, it is the intent
of each Guarantor that the subrogation rights of the holders of subordinated
Indebtedness with respect to the obligations of the Guarantor under this
Guaranty, be subject in all respects to the provisions of Section 16(b).
17. (a) THIS GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF EACH GUARANTOR
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE
OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTEE OR ANY
DOCUMENT RELATED HERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF GEORGIA OR
OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY
EXECUTION AND DELIVERY OF THIS GUARANTEE, EACH GUARANTOR HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS. EACH GUARANTOR HEREBY IRREVOCABLY DESIGNATES
[CORPORATION SERVICE COMPANY] AS ITS DESIGNEE, APPOINTEE AND AGENT OF SUCH
GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH GUARANTOR, SERVICE OF PROCESS IN
SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTEE OR ANY DOCUMENT RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED
COMPLETED THIRTY (30) DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS UNDERSTOOD
THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY
SUCH AGENT AND BY THE SERVER OF PROCESS BY MAIL TO THE RESPECTIVE GUARANTOR AT
ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF SUCH GUARANTOR TO RECEIVE SUCH
COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE GUARANTEED
PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER
JURISDICTION.
Exhibit C-8
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTEE OR ANY OTHER
LOAN DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
18. Upon execution and delivery by any Subsidiary of Borrower of an
instrument in the form of Annex I, such Subsidiary of Borrower shall become a
Guarantor hereunder with the same force and effect as if originally named a
Guarantor herein (each an "Additional Guarantor"). The execution and delivery of
any such instrument shall not require the consent of any Guarantor hereunder.
The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any Additional Guarantor as a
party to this Guarantee.
19. This Guarantee may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
Exhibit C-9
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be executed
by its duly authorized officer as of the date first above written.
GUARANTORS:
-----------
DOLLAR GENERAL FINANCIAL, INC.
(a Tennessee corporation)
By: ________________________________________________
Name:
Title:
DADE LEASE MANAGEMENT, INC.
(a Delaware corporation)
By: ________________________________________________
Name:
Title:
DOLGENCORP, INC.
(a Kentucky corporation)
By: ________________________________________________
Name:
Title:
DOLGENCORP OF NEW YORK, INC.
(a Kentucky corporation)
By: ________________________________________________
Name:
Title:
DOLGENCORP OF TEXAS, INC.
(a Kentucky corporation)
By: ________________________________________________
Name:
Title:
Exhibit C-10
DG LOGISTICS, LLC
(a Tennessee limited liability company)
By: ________________________________________________
Name:
Title:
DOLLAR GENERAL STORES, LTD.
(a Kentucky corporation)
By: ________________________________________________
Name:
Title:
DOLLAR GENERAL PARTNERS
(a Kentucky general partnership)
By: ________________________________________________
Name:
Title:
THE GREATER CUMBERLAND INSURANCE COMPANY (a Vermont
corporation)
By: ________________________________________________
Name:
Title:
NATIONS TITLE COMPANY, INC.
(a Tennessee corporation)
By: ________________________________________________
Name:
Title:
Exhibit C-11
DOLLAR GENERAL INTELLECTUAL PROPERTY, L.P.(a Vermont
limited partnership)
By: ________________________________________________
Name:
Title:
DOLLAR GENERAL INVESTMENTS, INC.
(a Delaware corporation)
By: ________________________________________________
Name:
Title:
DGC PROPERTIES LLC
(a Delaware limited liability company)
By: ________________________________________________
Name:
Title:
DGC PROPERTIES OF KENTUCKY LLC
(a Delaware limited liability company)
By: ________________________________________________
Name:
Title:
THE PROVISIONS OF SECTION 7 ABOVE HEREBY ACKNOWLEDGED AND AGREED TO:
DOLLAR GENERAL CORPORATION
By: ____________________
Name:
Title:
Exhibit C-12
ANNEX I
SUPPLEMENT TO GUARANTY AGREEMENT
--------------------------------
THIS SUPPLEMENT TO GUARANTY AGREEMENT (this "Supplement") made and delivered
as of __________________, by _____________________________, a
__________________________ (the "Additional Guarantor") in favor of (i) each of
the Lenders from time to time parties to the Credit Agreement described below
(each a "Lender" and collectively the "Lenders"), and (ii) SUNTRUST BANK, in its
capacities as Administrative Agent and Collateral Agent under the terms of the
Credit Agreement and the other Loan Documents referred to in the Credit
Agreement (in such capacities, the "Administrative Agent" and "Collateral Agent"
respectively; the Lenders, the Administrative Agent and Collateral Agent
collectively referred to herein as the "Guaranteed Parties").
A. Reference is made to the 364-Day Revolving Credit Agreement dated
as of June __, 2002 (as the same may have been or may hereafter be amended,
supplemented, and restated from time to time, the "Credit Agreement"),
among Dollar General Corporation, a Tennessee corporation ("Borrower"),
SunTrust Bank, as Administrative Agent, each other bank and lending
institution from time to time that has become a Lender thereunder
(collectively, "Lenders"), Credit Suisse First Boston, as Syndication
Agent, and U.S. Bank National Association and KeyBank National Association,
as Co-Documentation Agents.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement and
the Guaranty Agreement (as defined in the Credit Agreement).
C. Certain Subsidiaries of Borrower have entered into the Guaranty
Agreement in order to induce the Lenders to make Loans and other extensions
of credit to Borrower under the Credit Agreement. Pursuant to Section 5.10
of the Credit Agreement, certain Subsidiaries of Borrower are required to
enter into the Guaranty Agreement and become a Guarantor thereunder. The
undersigned (the "Additional Guarantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement and Guaranty
Agreement to become a Guarantor under the Guaranty Agreement in order to
induce the Lenders to make Loans and other extensions of credit to Borrower
and as consideration for Loans and other extensions of credit previously
made.
Accordingly, the Administrative Agent and the Additional Guarantor
agree as follows:
SECTION 1.
(a) By its signature below, the Additional Guarantor becomes a
Guarantor under the Guaranty Agreement with the same force and effect as if
originally named as a Guarantor therein, and the Additional Guarantor hereby (a)
agrees to all the terms and provisions of the Guaranty Agreement applicable to
it as a Guarantor thereunder, and (b) represents and warrants that the
representations and warranties made with respect to each Guarantor thereunder
and under the Credit Agreement are true and correct in respect of the Additional
Guarantor on and as of the date hereof. Each reference to a "Guarantor" in the
Guaranty Agreement shall be deemed to include the Additional Guarantor. The
Guaranty Agreement is hereby incorporated herein by reference.
(b) Without limiting the foregoing, the Additional Guarantor hereby jointly
and severally (with respect to the obligations of the Guarantors under the
Guaranty Agreement) irrevocably and unconditionally guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all principal of, and interest on, each Loan made to Borrower pursuant to the
Credit Agreement, the full and punctual payment when due of all fees, expenses,
indemnity and reimbursement payments, and other Obligations payable by Borrower
under the Credit Agreement and the other Loan Documents (including, without
limitation, interest accruing or that would have accrued after the filing of a
petition in bankruptcy or other insolvency proceeding, whether or not any claim
for interest is allowed or allowable in such proceeding), and all obligations of
Borrower arising pursuant to any interest rate protection or swap agreements
entered into with one or more of the Lenders. Upon failure by Borrower to pay
punctually when due any such amount, the Additional Guarantor agrees that it
shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in the Credit Agreement or the relevant Loan Documents, as the
case may be. The Additional Guarantor acknowledges and agrees that this is a
guarantee of payment when due, and not of collection, and that the obligations
of the Additional Guarantor hereunder may be enforced up to the full amount
hereof without proceeding against Borrower, any security held by or on behalf of
the Lenders, or against any other Guarantor or any other party that may have
liability on all or any portion of the Guaranteed Obligations.
SECTION 2. The Additional Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, or moratorium or other similar laws relating to the enforcement
of creditors' rights generally and by general equitable principles.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single agreement. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the Additional Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty Agreement
shall remain in full force and effect.
SECTION 5. This Supplement shall be governed by, and construed in accordance
with, the laws of the State of Georgia, without giving effect to the principles
of conflict of laws thereof.
Exhibit C - Annex -2
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction.) The parties hereto
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing and
given as provided in the Guaranty Agreement. All communications and notices
hereunder to the Additional Guarantor shall be given to it at the address of
Borrower as set forth in the Credit Agreement.
IN WITNESS WHEREOF, the Additional Guarantor and the Administrative Agent
have duly executed this Supplement to the Guaranty Agreement as of the day and
year first above written.
[Name of Additional Guarantor]
By: __________________________________
Name:
Title
SUNTRUST BANK,
As Administrative Agent
By: _____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇ -▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
---------
FORM OF CONTRIBUTION AGREEMENT
------------------------------
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of June
__, 2002, by and among DOLLAR GENERAL CORPORATION, a Tennessee corporation (the
"Principal"), each of the Subsidiaries of the Principal identified on the
signature pages of this Agreement (each a "Guarantor" and collectively the
"Guarantors"), and SUNTRUST BANK, a Georgia banking corporation, as
Administrative Agent for the Lenders (as defined in the Credit Agreement
referred to below).
W I T N E S S E T H:
--------------------
WHEREAS, the Principal, the Lenders, the Administrative Agent, Credit Suisse
First Boston, as Syndication Agent, and U.S. Bank National Association and
KeyBank National Association, as Co-Documentation Agents, are parties to a
certain 364-Day Revolving Credit Agreement dated as of June ___, 2002 (as the
same may hereafter from time to time be amended, modified, and restated, the
"Credit Agreement"; capitalized terms used herein that are defined in such
Credit Agreement are used herein with the respective meanings provided for such
terms in the Credit Agreement);
WHEREAS, pursuant to the requirements of the Credit Agreement, the
Guarantors have executed and delivered a Guaranty Agreement dated as of June
___, 2002, in favor of the Administrative Agent, the Collateral Agent, and the
Lenders (as the same may hereafter from time to time be amended, modified, and
restated, the "Guaranty Agreement");
WHEREAS, it is a further requirement and condition of the Credit Agreement
that the Guarantors execute and deliver an agreement in the form hereof;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce the Guarantors to enter into the Guaranty
Agreement, each Guarantor and the Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
---------------------------
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Principal agrees that in the event a payment shall be
made on behalf of the Principal by any Guarantor under the Guaranty Agreement,
the Principal shall indemnify such Guarantor for the full amount of such payment
and such Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a "Contributing
-------------------------------
Guarantor") agrees (subject to Section 3) that, in the event a payment shall be
made by any other Guarantor under the Guaranty Agreement and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Principal as provided in Section 1, each Contributing Guarantor shall
indemnify each Claiming Guarantor in an amount equal to the amount of such
Exhibit D - 1
payment, in each case multiplied by a fraction of which the numerator shall be
the net worth of such Contributing Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all Guarantors on the date
hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 12, the date of the Supplement hereto executed and delivered by such
Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this Section 2 shall be subrogated to the rights of such
Claiming Guarantor under Section 1 to the extent of such payment. As used
herein, the term "net worth" shall mean, as at any date of determination, the
consolidated members' capital, partners' capital, or stockholders' equity of
each Guarantor, as the case may be, as determined on a consolidated basis in
accordance with GAAP.
SECTION 3. Subordination. Notwithstanding any provision of this Agreement to
--------------
the contrary, all rights of the Principal and the Guarantors under Sections 1
and 2 and all other rights of indemnity, contribution, subrogation or
reimbursement under applicable law or otherwise shall be fully subordinated to
the indefeasible payment in full in cash of the Obligations owing by the
Principal. No failure on the part of the Principal or any Guarantor to make the
payments required by Sections 1 and 2 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of the Principal or any Guarantor with respect to its obligations
hereunder, and the Principal and each Guarantor shall remain liable for the full
amount of the obligations of the Principal and such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full force
------------
and effect so long as any Obligation owing by the Principal is outstanding and
has not been indefeasibly paid in full in cash, and so long as the Commitments
in favor of the Principal under the Credit Agreement have not been terminated.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any such Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Principal or any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
--------------
IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
------------------------
Administrative Agent, the Principal, or any Guarantor to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent, the Principal or any Guarantor preclude any
other or further exercise thereof or the exercise of any other right power or
remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Administrative Agent, the Principal or the
Guarantors shall be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into among the
Principal, the Guarantors and the Administrative Agent.
Exhibit D - 2
SECTION 7. Notices. All communications and notices hereunder shall be in
--------
writing and given as provided in the Guaranty Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement any of
-------------------------------
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the parties that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns. Neither the
Principal nor any Guarantor may assign or transfer any of its rights or
obligations hereunder (and any such attempted assignment or transfer shall be
void) without the prior written consent of the Administrative Agent.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
---------------------------------------
agreements made by the Principal and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Credit Documents shall be considered to have been relied
upon by the Administrative Agent, the Lenders, the Principal, and each
Guarantor, and all covenants and agreement made herein shall survive the making
of the Loans and the issuance of the Letters of Credit, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loans, or any Letter of Credit, or any other fee or amount payable by the
Principal under the Credit Agreement or this Agreement or under any of the other
Loan Documents, is outstanding and unpaid, or as long as any Commitments in
favor of the Principal under the Credit Agreement have not been terminated.
(b) In case any one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, no party hereto
shall be required to comply with such provision for so long as such provision is
held to be invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in counterparts
-------------
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement shall be effective with respect to the Principal
or Guarantor when a counterpart bearing the signature of the Principal or such
Guarantor shall have been delivered to the Administrative Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 11. Effect of Contribution Agreement. This Agreement is intended
-----------------------------------
only to define the relative rights of the Principal and the Guarantors, and
nothing set forth in this Agreement is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of the
Guaranty Agreement. The parties hereto acknowledge that the rights of
indemnification, subrogation, and contribution hereunder shall constitute assets
Exhibit D - 3
in favor of each Guarantor to which such right of indemnification, subrogation,
or indemnification is owing.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the Credit
-----------------------
Agreement, certain Subsidiaries of the Principal are required to enter into the
Guaranty Agreement as a Guarantor. Upon execution and delivery, after the date
hereof, by the Administrative Agent and such a Subsidiary of an instrument in
the form of Annex I hereto, such Subsidiary shall become a Guarantor hereunder
-------
with the same force and effect as if originally named as a Guarantor hereunder.
The execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party to this Agreement.
Exhibit D - 4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized offices as of the date first appearing above.
PRINCIPAL:
DOLLAR GENERAL CORPORATION
(a Tennessee corporation)
By: _____________________________________
Name:
Title:
Exhibit D - 5
GUARANTORS:
-----------
DOLLAR GENERAL FINANCIAL, INC.
(a Tennessee corporation)
By: ____________________________________
Name:
Title:
DADE LEASE MANAGEMENT, INC.
(a Delaware corporation)
By: ____________________________________
Name:
Title:
DOLGENCORP, INC.
(a Kentucky corporation)
By: ____________________________________
Name:
Title:
DOLGENCORP OF NEW YORK, INC.
(a Kentucky corporation)
By: ____________________________________
Name:
Title:
DOLGENCORP OF TEXAS, INC.
(a Kentucky corporation)
By: ____________________________________
Name:
Title:
Exhibit D - 6
DG LOGISTICS, LLC
(a Tennessee limited liability [company])
By: ____________________________________
Name:
Title:
DOLLAR GENERAL STORES, LTD.
(a Kentucky corporation)
By: ____________________________________
Name:
Title:
DOLLAR GENERAL PARTNERS
(a Kentucky general partnership)
By: ____________________________________
Name:
Title:
THE GREATER CUMBERLAND INSURANCE COMPANY
(a Vermont corporation)
By: ____________________________________
Name:
Title:
NATIONS TITLE COMPANY, INC.
(a Tennessee corporation)
By: ____________________________________
Name:
Title:
Exhibit D - 7
DOLLAR GENERAL INTELLECTUAL PROPERTY, L.P.
(a Vermont limited partnership)
By: ____________________________________
Name:
Title:
DOLLAR GENERAL INVESTMENTS, INC.
(a Delaware corporation)
By: ____________________________________
Name:
Title:
DGC PROPERTIES LLC
(a Delaware limited liability company)
By: ____________________________________
Name:
Title:
DGC PROPERTIES OF KENTUCKY LLC
(a Delaware limited liability company)
By: ____________________________________
Name:
Title:
Exhibit D - 8
SUNTRUST BANK,
as Administrative Agent
By: ____________________________________
Name:
Title:
Exhibit D - 9
ANNEX I
SUPPLEMENT TO
CONTRIBUTION AGREEMENT
----------------------
THIS SUPPLEMENT TO CONTRIBUTION AGREEMENT (this "Supplement") dated as of
________________________, made by and between __________________, a _________
(the "New Guarantor"), and the Administrative Agent described in the Credit
Agreement referred to below.
A. Reference is made to (a) the 364-Day Revolving Credit Agreement dated as
of June ___, 2002 (as amended, supplemented and restated from time to time, the
"Credit Agreement"), among Dollar General Corporation (the "Principal"),
SunTrust Bank, as Administrative Agent, the banks and other lending institutions
from time to time that are parties thereto (the "Lenders"), Credit Suisse First
Boston, as Syndication Agent, and U.S. Bank National Association and KeyBank
National Association, as Co-Documentation Agents, (b) the Guaranty Agreement
dated as of June ___, 2002, among the Guarantors that are parties thereto in
favor of the Administrative Agent, the Collateral Agent, and the Lenders (as
amended, supplemented and restated from time to time, the "Guaranty Agreement"),
and (c) the Contribution Agreement dated as of June ____, 2002, among the
Principal, the Guarantors, and the Administrative Agent (as amended,
supplemented and restated from time to time, the "Contribution Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to such terms in the Contribution Agreement or the
Credit Agreement, as the case may be.
C. The Principal and the Guarantors have entered into the Contribution
Agreement in order to induce the Lenders to make Loans and make other extensions
of credit to the Principal. Pursuant to Section 5.10 of the Credit Agreement,
certain Subsidiaries of the Principal are required to enter into the Guaranty
Agreement as a Guarantor. Section 12 of the Contribution Agreement provides that
additional Subsidiaries of the Principal may become Guarantors under the
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Principal (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Contribution Agreement in
order to induce the Lenders to make additional Loans and make other additional
extensions of credit to the Principal and as consideration for Loans and other
extensions of credit previously made and issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Contribution Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Contribution
Agreement with the same force and effect as if originally named therein as a
Guarantor, and the New Guarantor hereby agrees to all the terms and provisions
of the Contribution Agreement applicable to it as a Guarantor thereunder. Each
reference to a "Guarantor" in the Contribution Agreement shall be deemed to
include the New Guarantor. The Contribution
Exhibit D - Annex - 1
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Administrative
Agent and the Lenders that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Contribution
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Contribution Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and
given as provided in Section 7 of the Contribution Agreement. All communications
and notices hereunder to the New Guarantor shall be given to it at the address
of the Principal as provided in the Credit Agreement.
Exhibit D - Annex - 2
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to Contribution Agreement as of the day and year
first above written.
[Name of New Guarantor]
By: ___________________________________
Name:
Title
SUNTRUST BANK,
as Administrative Agent
By: ___________________________________
Name:
Title
Exhibit D - Annex - 3
EXHIBIT 2.3
-----------
FORM OF NOTICE OF BORROWING
---------------------------
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Reference is made to the 364-Day Revolving Credit Agreement dated as of
June __, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein,
SunTrust Bank, as Administrative Agent, Credit Suisse First Boston, as
Syndication Agent, and U.S. Bank National Association and KeyBank National
Association, as Co-Documentation Agents. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Borrowing, and the Borrower hereby requests a Borrowing under the Credit
Agreement, and in that connection the Borrower specifies the following
information with respect to the Borrowing requested hereby:
(A) Aggregate principal amount of Borrowing1:______________________
(B) Date of Borrowing (which is a Business Day):__________________
(C) Interest Rate basis2:__________________________________________
(D) Interest Period3:______________________________________________
(E) Location and number of Borrower's account to which
proceeds of Borrowing are to be disbursed:___________________
-----------------------
1 Not less than $10,000,000 or a larger multiple of $500,000 if a Eurodollar
Borrowing, and not be less than $1,000,000 or a larger multiple of $100,000
if a Base Rate Borrowing.
2 Eurodollar Borrowing or Base Rate Borrowing.
3 Which must comply with the definition of "Interest Period" and end not
later than the Commitment Termination Date.
Exhibit 2.3 - 1
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied as of the date hereof.
Very truly yours,
DOLLAR GENERAL CORPORATION
---------------------------
Name:
Title
Exhibit 2.3 - 2
EXHIBIT 2.5
-----------
FORM OF NOTICE OF CONTINUATION/CONVERSION
-----------------------------------------
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Reference is made to the 364-Day Revolving Credit Agreement dated as of
June __, 2002 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein,
SunTrust Bank, as Administrative Agent, Credit Suisse First Boston, as
Syndication Agent, and U.S. Bank National Association and KeyBank National
Association, as Co-Documentation Agents. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Continuation/Conversion and the Borrower hereby requests the conversion or
continuation of a Borrowing under the Credit Agreement, and in that connection
the Borrower specifies the following information with respect to the Borrowing
to be converted or continued as requested hereby:
(A) Borrowing to which this request
applies: (amount)
----------------------------------------
, 200__ (Interest Period End Date)
---------------
(B) Principal amount(s) of Borrowing to
be converted/continued1:
(1) $
-------------------------------
(2) $
-------------------------------
(3) $
-------------------------------
(C) Effective date of election (must be a Business Day):
-----------------------
1 Not less than $10,000,000 or a larger multiple of $500,000 if a Eurodollar
Borrowing, and not be less than $1,000,000 or a larger multiple of $100,000
if a Base Rate Borrowing.
Exhibit 2.5 - 1
(D) Interest rates basis for each resulting Borrowing1:
(1)
-------------------------------
(2)
-------------------------------
(3)
-------------------------------
(E) Interest period for each resulting Borrowing2:
(1)
(2)
(3)
Very truly yours,
DOLLAR GENERAL CORPORATION
---------------------------
Name:
Title
------------------
1 Eurodollar Borrowing or Base Rate Borrowing.
2 Which must comply with the definition of "Interest Period" and end not
later than the Commitment Termination Date.
Exhibit 2.5 - 2