Exhibit 4.3
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of September 20, 2022
Supplementing that Certain
INDENTURE
Dated as of July 12, 2012
between
DOLLAR GENERAL CORPORATION, as Issuer
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, as Trustee
4.625% SENIOR NOTES DUE 2027
Table of Contents
Page
ARTICLE I.
DEFINITIONS |
|
|
|
| SECTION 1.1. |
Certain Terms Defined in this
Indenture |
1 |
| SECTION 1.2. |
Definitions |
2 |
| SECTION 1.3. |
Other Definitions |
6 |
ARTICLE II.
FORM AND
TERMS OF THE NOTES |
| |
|
|
| SECTION 2.1. |
Form and Dating |
6 |
| SECTION 2.2. |
Certain Terms of the Notes |
8 |
| SECTION 2.3. |
Optional Redemption |
9 |
| SECTION 2.4. |
Offer to Repurchase Upon a Change of Control
Triggering Event |
10 |
| SECTION 2.5. |
Limitation on Liens |
11 |
| SECTION 2.6. |
Events of Default |
11 |
| SECTION 2.7. |
SEC Reports |
12 |
ARTICLE III.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| |
|
|
| SECTION 3.1. |
Option to Effect Legal Defeasance or Covenant
Defeasance |
13 |
| SECTION 3.2. |
Legal Defeasance and Discharge |
13 |
| SECTION 3.3. |
Covenant Defeasance |
14 |
| SECTION 3.4. |
Conditions to Legal or Covenant Defeasance |
14 |
| SECTION 3.5. |
Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous Provisions |
16 |
| SECTION 3.6. |
Repayment to Company |
16 |
| SECTION 3.7. |
Reinstatement |
17 |
ARTICLE IV.
SATISFACTION
AND DISCHARGE |
| |
|
|
| SECTION 4.1. |
Satisfaction and Discharge |
17 |
| SECTION 4.2. |
Application of Trust Money |
18 |
ARTICLE V.
MISCELLANEOUS |
| |
|
|
| SECTION 5.1. |
Relationship with Indenture |
19 |
| SECTION 5.2. |
Trust Indenture Act Controls |
19 |
| SECTION 5.3. |
Governing Law |
19 |
| SECTION 5.4. |
Counterparts |
19 |
| SECTION 5.5. |
Severability |
20 |
| SECTION 5.6. |
Ratification |
20 |
| SECTION 5.7. |
Headings |
20 |
| SECTION 5.8. |
Effectiveness |
20 |
EXHIBIT A — Form of 4.625% Senior Notes due 2027
ELEVENTH SUPPLEMENTAL INDENTURE
This Eleventh Supplemental Indenture, dated as
of September 20, 2022, by and between DOLLAR GENERAL CORPORATION, a corporation duly organized and existing under the laws of the
State of Tennessee (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a duly organized and existing
national banking association under the laws of the United States, as trustee (the “Trustee”).
WHEREAS, the Company and the Trustee are parties
to that certain Indenture, dated as of July 12, 2012 (as amended or supplemented through the date hereof, the “Base Indenture”),
as supplemented by this Eleventh Supplemental Indenture, dated as of September 20, 2022 (this “Eleventh Supplemental Indenture,”
and together with the Base Indenture, this “Indenture”), providing for the issuance by the Company of an unlimited
number of series of Securities from time to time;
WHEREAS, the Base Indenture provides that the
Securities of a series shall be in the form and shall have such terms and provisions as may be established in one or more supplemental
indentures thereto;
WHEREAS, the Company has determined to issue a
series of senior Securities under this Indenture designated as the Company’s “4.625% Senior Notes due 2027” (hereinafter
called the “Notes”) pursuant to the terms of this Eleventh Supplemental Indenture and substantially in the form as
set forth in Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture and this Eleventh Supplemental Indenture; and
WHEREAS, the Company, by action duly taken, has
authorized the execution of this Eleventh Supplemental Indenture and the issuance of the Notes;
NOW, THEREFORE, THIS ELEVENTH SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the promises stated
herein and the purchase of the Notes by the Holders thereof, the parties hereto hereby enter into this Eleventh Supplemental Indenture,
for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain
Terms Defined in this Indenture.
For purposes of this Eleventh Supplemental Indenture
and the Notes, all capitalized terms used but not defined herein or therein, as applicable, shall have the meanings ascribed to such
terms in this Indenture. For the avoidance of doubt, references to any “Section” of the “Indenture” refer to
such Section of the Base Indenture, as supplemented and amended by this Eleventh Supplemental Indenture.
SECTION 1.2. Definitions.
For the benefit of the Holders, Section 1.1
of the Base Indenture shall be amended by adding or substituting, as applicable, the following new definitions:
“Authorized Newspaper” means
a newspaper in an official language of the country of publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice
in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“Below Investment Grade Rating Event”
means, with respect to the Notes, the Notes become rated below an Investment Grade Rating by both of the Rating Agencies on any date
from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following
public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by any of the Rating Agencies (the “Relevant Period”));
provided that, a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed
to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for
purposes of the definition of “Change of Control Triggering Event”) if the Rating Agencies making the reduction in rating
to which this definition would otherwise apply either (1) did not reduce the ratings of the Notes during the Relevant Period or
(2) do not announce or publicly confirm that the reduction was the result, in whole or in part, of any event or circumstance comprised
of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall
have occurred at the time of the Below Investment Grade Rating Event).
“Board of Directors” means
the board of directors or comparable governing body of the Company, or any committee thereof duly authorized to act on its behalf.
“Capital Stock” means:
(a) in
the case of a corporation, corporate stock;
(b) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(c) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(d) any
other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether
or not such debt securities include any right of participation with Capital Stock.
“Change of Control” means the
occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the
Company and its Subsidiaries taken as a whole to any “Person” (as that term is used in Section 13(d)(3) of the
Exchange Act) other than the Company or one of its Subsidiaries; (2) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any “Person” (as that term is used in Section 13(d)(3) of
the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of
the Company’s Voting Stock; (3) the first day on which a majority of the members of the Company’s Board of Directors
are not Continuing Directors; or (4) the adoption of a plan relating to the Company’s liquidation or dissolution; or (5) the
Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted
into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the
Company outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting
Stock of the surviving Person immediately after giving effect to such transaction. Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1) the Company becomes a wholly owned Subsidiary of a holding company that has
agreed to be bound by the terms of this Indenture and (2) the holders of the Voting Stock of such holding company immediately following
that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction.
“Change of Control Triggering Event”
means, with respect to the Notes, the occurrence of both a Change of Control and a Below Investment Grade Rating Event, with respect
to the Notes.
“Consolidated Net Tangible Assets”
means the Company’s total assets, less net goodwill and other intangible assets, less total current liabilities, all as described
on the Company’s and its consolidated Subsidiaries’ most recent balance sheet and calculated based on positions as reported
in the Company’s consolidated financial statements in accordance with U.S. generally accepted accounting principles and after giving
pro forma effect to any acquisitions or dispositions which occur after such balance sheet date.
“Continuing
Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was
a member of such Board of Directors on the Issue Date; or (2) was nominated for election, elected or appointed 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, election or appointment (either by specific action of the Board of Directors or by approval by such directors of the Company’s
proxy statement in which such member was named as a nominee for election as a director).
“Global Notes” means, individually
and collectively, each of the Notes in the form of global Securities registered in the name of the Depositary or its nominee, substantially
in the form of Exhibit A attached hereto.
“Government Securities” means
direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges
its full faith and credit.
“Investment Grade Rating” means
a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent
investment grade credit rating from any replacement Rating Agency or Rating Agencies.
“Issue Date” means September 20,
2022.
“Moody’s” means Moody’s
Investors Service, Inc.
“Person” means any individual,
partnership, corporation, limited liability company, joint stock company, business trust, trust, unincorporated association, joint venture
or other entity, or a government or political subdivision or agency thereof.
“Rating Agencies” means (1) each
of Moody’s and S&P; and (2) if either Moody’s or S&P ceases to rate the Notes or fails to make a rating of the
Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by a Board Resolution)
as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
“Revolving Facility” means
that certain amended and restated credit agreement, dated as of December 2, 2021, among the Company, as borrower, Citibank, N.A.,
as administrative agent, and the other lending institutions from time to time party thereto, including any guarantees, collateral documents,
instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements,
refunding or refinancing thereof and any indentures, notes, debentures or credit facilities or commercial paper facilities with banks
or other institutional lenders or investors that replace, refund or refinance all or any part of the loans, notes, other credit facilities
or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount that
can be borrowed thereunder or alters the maturity thereof.
“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
“Significant Subsidiary” means
a Subsidiary (treated for purposes of this definition on a consolidated basis together with its Subsidiaries) which meets any of the
following conditions:
(a) the
Company’s and the Company’s other Subsidiaries’ investments in and advances to the Subsidiary exceed 10% of the total
assets of the Company and the Company’s Subsidiaries consolidated as of the end of the most recently completed fiscal year;
(b) the
Company’s and the Company’s other Subsidiaries' proportionate share of the total assets (after intercompany eliminations)
of the Subsidiary exceeds 10% of the total assets of the Company and the Company’s Subsidiaries consolidated as of
the end of the most recently completed fiscal year; or
(c) the
Company’s and the Company’s other Subsidiaries’ equity in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principles of the Subsidiary exceeds 10% of such income of the Company
and the Company’s Subsidiaries consolidated for the most recently completed fiscal year.
“Subsidiary”
of any specified Person means any corporation, association or other business entity of which more than 50% of the total voting power
of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such person or one or more of the other Subsidiaries of that Person or a combination thereof.
“Treasury Rate” means, with
respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors
of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent
day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal
Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication)
(“H.15”) under the caption “U.S. government securities — Treasury constant maturities — Nominal”
(or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield
for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining
Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields
— one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than, and one yield corresponding to the
Treasury constant maturity on H.15 immediately longer than, the Remaining Life — and shall interpolate to the Par Call Date on
a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if
there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury
constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or
maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury
constant maturity from the redemption date.
If on the third business day preceding the
redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury
Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the
second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is
closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there
are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity
date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United
States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury
securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding
sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the
semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked
prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security,
and rounded to three decimal places.
“Voting Stock” means Capital
Stock the holders of which have general voting power under ordinary circumstances to elect at least a majority of the Board of Directors;
provided that, for the purpose of such definition, Capital Stock which carries only the right to vote conditioned on the occurrence of
an event shall not be considered Voting Stock whether or not such event shall have occurred.
SECTION 1.3. Other
Definitions.
TERM |
|
|
| “Additional
Notes” |
|
2.2 |
| “Change
of Control Offer” |
|
2.4 |
| “Change
of Control Payment” |
|
2.4 |
| “Change
of Control Payment Date” |
|
2.4 |
| “Covenant
Defeasance” |
|
3.3 |
| “Depository” |
|
2.1 |
| “Legal
Defeasance” |
|
3.2 |
| “Make-whole
Deficit” |
|
4.1 |
| “Maturity
Date” |
|
2.2 |
| “Par
Call Date” |
|
2.3 |
ARTICLE II.
FORM AND
TERMS OF THE NOTES
SECTION 2.1. Form and
Dating.
The Notes and the Trustee’s certificate
of authentication shall be substantially in the form of Exhibit A attached hereto. The Notes shall be executed on behalf
of the Company by two of the officers of the Company specified in Section 2.3 of the Base Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication.
The terms and notations contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture; and the Company and the Trustee, by their execution and delivery
of this Eleventh Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby; provided that, to the
extent of any inconsistency between the terms and provisions in this Indenture and those contained in the Notes, this Indenture shall
govern.
(a) Global
Notes. The Notes designated herein shall be issued initially in the form of one or more fully registered permanent global Securities,
which shall be held by the Trustee as custodian for The Depository Trust Company, New York, New York (the “Depositary”),
and registered in the name of Cede & Co., the Depositary’s nominee, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of outstanding Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided.
Unless and until the Global Notes are exchanged
in whole or in part for the individual Notes represented thereby pursuant to Section 2.15 of the Base Indenture, such Global Notes
may not be transferred except as a whole by the Depositary to its nominee or by its nominee to the Depositary or another nominee of the
Depositary or by the Depositary or any of its nominees to a successor depositary or any nominee of such successor depositary. Upon the
occurrence of the events specified in Section 2.15 of the Base Indenture in relation thereto, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order for authentication, authenticate and deliver, Notes in definitive form in an aggregate
principal amount equal to the principal amount of the Global Notes in exchange for such Global Note.
(b) Book-Entry
Provisions. This Section 2.1(b) shall apply only to the Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall,
in accordance with this Section 2.1(b), authenticate and deliver the Global Notes that shall be registered in the name of the Depositary
or the nominee of the Depositary and shall be held by the Trustee as custodian for the Depositary.
Participants of the Depositary shall have no rights
either under this Indenture or with respect to any Global Notes. The Depositary shall be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes under this Indenture. Notwithstanding
the foregoing, nothing herein shall prevent the Company or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary and its participants, the operation of customary practices
of such Depositary governing the exercise of the rights of an owner of a beneficial interest in the Global Notes.
(c) Definitive
Notes. Definitive Notes issued in physical, certificated form, registered in the name of the beneficial owner thereof, shall be substantially
in the form of Exhibit A attached hereto, but without including the text referred to therein as applying only to Global Notes.
Except as provided above in subsection (a), owners of beneficial interests in the Global Notes will not be entitled to receive physical
delivery of certificated Notes.
(d) Transfer
and Exchange of the Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary,
in accordance with this Indenture and the procedures of the Depositary therefor. Beneficial interests in the Global Notes may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in the Global Notes.
(e) Paying
Agent and Registrar. The Company appoints the Trustee as the initial Paying Agent of the Company for the payment of the principal
of (and premium, if any) and interest on, the Notes, and the Corporate Trust Office of the Trustee be, and hereby is, designated as the
office or agency where the Notes may be presented for payment and where notices to or demands upon the Company in respect of the Notes
and this Eleventh Supplemental Indenture and this Indenture pursuant to which the Notes are to be issued may be made. The Company appoints
the Trustee as the initial Security Registrar with respect to the Notes.
SECTION 2.2. Certain
Terms of the Notes.
The following terms relating to the Notes are
hereby established:
(a) Title.
The Notes shall constitute a series of senior Securities having the title “4.625% Senior Notes due 2027”.
(b) Principal
Amount. The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Indenture (except
for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections
2.7, 2.8, 2.11, 3.6 and 9.6 of the Base Indenture) shall be FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000). The Company may, from
time to time, without the consent of the Holders, issue and sell additional Notes (“Additional Notes”) ranking equally
and ratably with the Notes in all respects (other than the issue date and, to the extent applicable, issue price, initial date of interest
accrual and the initial interest payment date of such Additional Notes). Any such Additional Notes shall be consolidated with and form
a single series with the Notes for all purposes under this Indenture. If the Additional Notes are not fungible with the Notes for U.S.
federal income tax purposes, the Additional Notes will have a different CUSIP number.
(c) Ranking.
The Notes shall constitute senior unsecured indebtedness of the Company and shall rank equally in right of payment with all existing
and future senior indebtedness of the Company and, to the extent of the value of the collateral, will be effectively subordinated to
the Company’s secured indebtedness.
(d) Maturity
Date. The entire outstanding principal of the Notes shall be payable on November 1, 2027 (the “Maturity Date”).
(e) Interest
Rate. The rate at which the Notes shall bear interest shall be 4.625% per annum, computed on the basis of a 360-day year
comprised of twelve 30-day months; the date from which interest shall accrue on the Notes shall be September 20, 2022, or the
most recent Interest Payment Date to which interest has been paid or duly provided for; the Interest Payment Dates for the
Notes shall be the 1st day of May and November of each year, commencing on May 1, 2023; the interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid, in immediately available funds, to
the Persons in whose names the Notes (or one or more predecessor Securities) are registered at the close of business on the Regular
Record Date for such interest, which shall be the 15th day of April and October (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Payment of principal of, and premium, if any, and interest on, the Notes
will be made at the Corporate Trust Office of the Trustee or such other office or agency of the Company as may be designated for
such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that each installment of interest, premium, if any, and principal on the Notes may at
the Company’s option be paid in immediately available funds by wire transfer to an account maintained by the payee located in
the United States.
(f) Sinking
Fund. The Notes are not subject to any sinking fund.
SECTION 2.3. Optional
Redemption.
(a) Applicability
of Article III. The provisions of Article III of the Base Indenture shall apply to the Notes, as supplemented by Sections
2.3(b) and (c) below and as amended by the following sentence; provided that this Section 2.3 shall not become part of
the terms of any other series of Securities. The first paragraph of Section 3.3 of the Base Indenture shall be amended by replacing
the phrase “at least 30 days” with the phrase “at least 10 days.”
(b) Make
Whole Redemption. Prior to October 1, 2027 (the “Par Call Date”), the Company may redeem the Notes at its
option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount
and rounded to three decimal places) equal to the greater of:
(1) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming
that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 20 basis points, less (b) interest accrued to the redemption date, and
(2) 100%
of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to the
redemption date.
(c) Par
Redemption. Notwithstanding the foregoing Section 2.3(b), on or after the Par Call Date, the Company may redeem the Notes at
its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of such
Notes being redeemed plus accrued and unpaid interest thereon to the redemption date.
SECTION 2.4. Offer
to Repurchase Upon a Change of Control Triggering Event.
If a Change of Control Triggering Event occurs
with respect to the Notes, unless the Company has exercised its right to redeem the Notes as described in Section 2.3 or exercised
its option to satisfy and discharge this Indenture as set forth in Article IV hereof, Holders shall have the right to require the
Company to repurchase all or any part in an integral multiple of $1,000 of their Notes (provided that no Note will be purchased in part
if the remaining principal amount of such Note would be less than $2,000) pursuant to the offer described below (the “Change
of Control Offer”). In the Change of Control Offer, the Company shall offer payment in cash equal to 101% of the then outstanding
aggregate principal amount of Notes subject to such offer, plus accrued and unpaid interest, if any, on the Notes repurchased to, but
excluding, the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control
Triggering Event, or, at the Company’s option, prior to any Change of Control, but after the public announcement of the Change
of Control, the Company shall mail a notice to Holders describing the transaction or transactions that constitute or may constitute the
Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier
than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”),
pursuant to the procedures described herein and in such notice. The notice shall, if mailed prior to the date of consummation of the
Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to
the payment date specified in the notice. The Company must comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase
of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control provisions herein, the Company shall only be required to comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of this Indenture by virtue
of such conflicts.
Notwithstanding the foregoing, the Company shall
not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes
such an offer in the manner, at the times and otherwise in compliance with the requirements for a Change of Control Offer made by the
Company and the third party repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the Company will
not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under this
Indenture, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
On the Change of Control Payment Date, the Company
shall to the extent lawful (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control
Offer; (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof
properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
The Paying Agent will promptly mail to each
Holder who has properly tendered Notes the applicable Change of Control Payment for the Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of any Notes surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000.
SECTION 2.5. Limitation
on Liens. The Company shall not, and the Company shall not permit any Subsidiary to, incur, issue, assume or guarantee any indebtedness
for money borrowed if such indebtedness is secured by a pledge of, lien on or security interest in any shares of Voting Stock of any
Significant Subsidiary, whether such Voting Stock is now owned or is hereafter acquired, without providing that the Notes (together with,
if the Company shall so determine, any other indebtedness or obligations of the Company or any Subsidiary ranking equally with the Notes
and then existing or thereafter created) shall be secured equally and ratably with such indebtedness. The foregoing limitation shall
not apply to indebtedness:
(1) secured
by a pledge of, lien on or security interest in any shares of Voting Stock of any entity at the time it becomes a Significant Subsidiary;
(2) of
a Subsidiary owed to the Company or indebtedness of a Subsidiary owed to another Subsidiary;
(3) incurred,
together with all other indebtedness of the Company and its Subsidiaries similarly secured by liens on shares of Voting Stock pursuant
to this clause (3), in an amount not to exceed at the time of such creation, assumption, renewal, extension or replacement 15% of Consolidated
Net Tangible Assets; and
(4) incurred
for the sole purpose of extending, renewing, replacing or refinancing indebtedness secured by any lien referred to in the foregoing clauses
(1) to (3); provided, however, that the principal amount of indebtedness secured by that lien shall not exceed the principal amount
of indebtedness so secured at the time of such extension, renewal, replacement or refinancing, plus any amounts necessary to pay any
fees and expenses, including premiums relating to such extension, renewal, replacement or refinancing.
SECTION 2.6. Events
of Default.
(a) Applicability
of Section 6.1. Section 6.1 of the Base Indenture shall apply to the Notes, as supplemented by Sections 2.6(b), (c) and
(d) below; provided that this Section 2.6 shall not become part of the terms of any other series of Securities.
The occurrence of the events set forth in Sections 2.6(b) or
2.6(c) will constitute an “Event of Default” with respect to the Notes:
(b) default
after the expiration of the grace period in the payment of principal when due, or resulting in acceleration, of other indebtedness
(other than non-recourse debt) of the Company or any Significant Subsidiaries, for borrowed money or the payment of which is
guaranteed by the Company or any Significant Subsidiary if the aggregate principal amount with respect to which the default or
acceleration has occurred exceeds $100,000,000 and such indebtedness has not been discharged, or such default in payment or
acceleration has not been cured or rescinded, prior to written notice of acceleration of the Notes; or
(c) failure
by the Company or any Significant Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $100,000,000, which judgments are not paid, discharged or stayed for a period of 60 days after such judgments become final
and non-appealable, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor
upon such judgment or decree which is not promptly stayed.
(d) In
the event of any Event of Default specified in Section 2.6(b), such Event of Default and all consequences thereof (excluding any
resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically
and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (1) the indebtedness
or guarantee that is the basis for such Event of Default has been discharged; (2) holders thereof have rescinded or waived acceleration,
notice or action (as the case may be) giving rise to such Event of Default; or (3) the default that is the basis for such Event
of Default has been cured.
SECTION 2.7. SEC
Reports. For the benefit of the Holders, the Base Indenture shall be amended by replacing Section 4.4 thereof in its entirety
with this Section 2.7, provided that, this Section 2.7 shall not become part of the terms of any other series of Securities.
The Company will for so long as any Notes are
outstanding:
(a) make
available to the Trustee and the Holders of Notes copies of the annual reports and of the information, documents and other reports which
the Company may be required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided that for this
purpose the filing with the SEC of such reports, information and documents shall be sufficient; or
(b) if
the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, make available to
the Trustee and the Holders of the Notes (including, without limitation, by means of a public or private website), substantially similar
periodic information (excluding exhibits) which would be required to be included in periodic reports on Forms 10-K, 10-Q and 8-K (or
any successor form or forms) under the Exchange Act within the time periods set forth in the applicable SEC rules and regulations
as if the Company were a non-accelerated filer as defined in such applicable SEC rules and regulations; provided that in each case
such information may be subject to exclusions if the Company in good faith determines that such excluded information would not be material
to the interests of the Holders of the Notes (it being understood that the information required by Rule 3-10 of Regulation S-X and
Section 13(r) of the Exchange Act is not material).
The delivery of such reports, information and
documents to the Trustee pursuant to this Section 2.7 is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).
(c) In
the event that any direct or indirect parent company of the Company becomes a guarantor of the Notes, the Company may satisfy its obligations
in this covenant with respect to financial information relating to the Company by furnishing financial information relating to such parent;
provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information
relating to such parent, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on
the other hand.
ARTICLE III.
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
For the benefit of the Holders, the Base Indenture
shall be amended by replacing Article VIII thereof in its entirety with this Article III; provided that this Article III
shall not become part of the terms of any other series of Securities:
SECTION 3.1. Option
to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time,
elect to have either Section 3.2 or 3.3 hereof applied to all outstanding Notes upon compliance with the conditions set forth below,
in this Article III.
SECTION 3.2. Legal
Defeasance and Discharge.
Upon the Company’s exercise under Section 3.1
hereof of the option applicable to this Section 3.2, the Company shall, subject to the satisfaction of the conditions set forth
in Section 3.4 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date
the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter
be deemed to be “outstanding” only for the purposes of Section 3.5 hereof and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder:
(a) the
rights of Holders to receive payments in respect of the principal of and interest, if any, on the Notes when such payments are due solely
out of the trust funds referred to below;
(b) the
Company’s obligations under Sections 2.4, 2.5, 2.7, 2.8 and 2.11 of the Base Indenture;
(c) the
rights, powers, trusts, duties and immunities of the Trustee for such Notes under Article VII of the Base Indenture, and the Company’s
obligations in connection therewith; and
(d) this
Section 3.2.
Subject to compliance with this Article III,
the Company may exercise its option under this Section 3.2.
SECTION 3.3. Covenant
Defeasance.
Upon the Company’s exercise under Section 3.1
hereof of the option applicable to this Section 3.3, the Company shall, subject to the satisfaction of the conditions set forth
in Section 3.4 hereof, be released from its obligations under the covenants contained in Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and
4.8 of the Base Indenture and 2.4 , 2.5 and 2.7 hereof on and after the date the conditions set forth in Section 3.4 hereof are
satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.1 of the Base Indenture, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 3.1 hereof
of the option applicable to this Section 3.3 hereof, subject to the satisfaction of the conditions set forth in Section 3.4
hereof, Section 2.6(b) and (c) hereof and Section 6.1(c) of the Base Indenture shall not constitute Events of
Default.
SECTION 3.4. Conditions
to Legal or Covenant Defeasance.
The following shall be the conditions to the application
of either Section 3.2 or 3.3 hereof to the outstanding Notes:
(1) the
Company must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the Holders, cash in Dollars, non-callable
Government Securities or a combination thereof, in such amounts as will be sufficient in the opinion of a nationally recognized investment
bank, appraisal firm or firm of independent public accountants, to pay the principal of and interest on the Notes issued under this Indenture
on the stated date for payment or on the redemption date, as the case may be, of such principal, installment of principal or of interest
on such Notes and the Company must specify whether such Notes are being defeased to maturity or to a particular redemption date;
(2) in
the case of an election under Section 3.2 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that,
(A) the
Company has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(B) since
the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders and beneficial owners of the Notes
will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(3) in
the case of an election under Section 3.3 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders and beneficial
owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance
and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;
(4) no
Default or Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied to such deposit or the grant of any lien securing such
borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens in connection
therewith);
(5) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, the Revolving Facility
or any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound (other than that resulting from the borrowing of funds to be applied to such deposit
or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness and, in each
case, the granting of liens in connection therewith);
(6) the
Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(7) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions), each stating that the conditions provided for in, in the case of the Officers’
Certificate, clauses (1) through (6) and, in the case of the Opinion of Counsel, clauses (2) and/or (3) and (5) of
this Section 3.4 have been complied with.
SECTION 3.5. Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 3.6 hereof, all money
and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 3.4 hereof
in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of this Indenture,
to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine,
to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant
to Section 3.4 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders.
Notwithstanding anything in this Article III
to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 3.4 hereof which, in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 3.4 hereof), are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 3.6. Repayment
to Company.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of, or premium, if any, or interest on, any Notes and remaining
unclaimed for one year after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on
its request or (if then held by the Company) will be discharged from such trust; and the Holders will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date
of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 3.7. Reinstatement.
If, in connection with a Legal Defeasance or Covenant
Defeasance, the Trustee or Paying Agent is unable to apply any Dollars or non-callable Government Securities in accordance with Section 3.5
hereof, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes will be revived and reinstated as though no deposit
had occurred pursuant to Section 3.2 or 3.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 3.5 hereof; provided, however, that, if the Company makes any payment of principal of or interest
on any Notes following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE IV.
SATISFACTION
AND DISCHARGE
For the benefit of the Holders, the Base Indenture
shall be amended by replacing Article XI thereof in its entirety with this Article IV; provided that this Article IV shall
not become part of the terms of any other series of Securities:
SECTION 4.1. Satisfaction
and Discharge.
This Indenture will be discharged and will cease
to be of further effect as to the Notes issued hereunder, when:
(a) either:
(i) all
outstanding Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or
(ii) all
outstanding Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing
of a notice of redemption or otherwise or will become due and payable within one year or have been called for redemption under
Section 2.3 hereof and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in Dollars, non-callable Government Securities or a combination thereof, in such amounts
as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on such
Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption, as the case may be; provided that for any such
redemption conducted pursuant to Section 2.3(b) hereof, the amount deposited shall be sufficient for purposes of this
Indenture to the extent that an amount is deposited with the Trustee calculated as required by such Section 2.3(b) using
the Treasury Rate as of the date of the notice of redemption, with any deficit as of the redemption date (any such amount, the
“Make-whole Deficit”) only required to be deposited with the Trustee on or prior to the redemption date. Any
Make-whole Deficit will be set forth in an Officers’ Certificate delivered to the Trustee simultaneously with the
deposit of such Make-whole Deficit that confirms that such Make-whole Deficit will be applied toward such redemption;
(b) no
Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous
deposit relating to other indebtedness and, in each case, the granting of liens in connection therewith) and the deposit will not result
in a breach or violation of, or constitute a default under, the Revolving Facility or any other material instrument to which the Company
is a party or by which the Company is bound (other than a breach, violation or default resulting from the borrowing of funds to be applied
to such deposit or the grant of any lien securing such borrowing or any similar and simultaneous deposit relating to other indebtedness
and, in each case, the granting of liens in connection therewith);
(c) the
Company has paid or caused to be paid all sums payable by it under this Indenture; and
(d) the
Company has delivered irrevocable instructions to the Trustee for such Notes under this Indenture to apply the deposited money toward
the payment of such Notes at maturity or on the redemption date, as the case may be.
In addition, the Company shall deliver an Officers’
Certificate and an Opinion of Counsel to the Trustee for such Notes stating that all conditions precedent to satisfaction and discharge
have been satisfied, and all fees and expenses of the Trustee shall have been paid.
Notwithstanding the satisfaction and discharge
of this Indenture, if money has been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section 4.1,
the provisions of Section 3.6 and 4.2 hereof will survive. In addition, nothing in this Section 4.1 will be deemed to discharge
those provisions of Section 7.7 of the Base Indenture that, by their terms, survive the satisfaction and discharge of this Indenture.
SECTION 4.2. Application
of Trust Money.
Subject to the provisions of Section 3.6
hereof, all money or Government Securities deposited with the Trustee pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need
not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply
any money or Government Securities in accordance with Section 4.1 hereof by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.1
hereof; provided that if the Company has made any payment of principal of, or premium, if any, or interest on, the Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the money
or Government Securities held by the Trustee or Paying Agent.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Relationship
with Indenture.
The terms and provisions contained in the Base
Indenture will constitute, and are hereby expressly made, a part of this Eleventh Supplemental Indenture. However, to the extent any
provision of the Base Indenture conflicts with the express provisions of this Eleventh Supplemental Indenture, the provisions of this
Eleventh Supplemental Indenture will govern and be controlling. In all other respects, the Base Indenture is confirmed by the parties
hereto as supplemented by the terms of this Eleventh Supplemental Indenture.
SECTION 5.2. Trust
Indenture Act Controls.
If any provision of this Eleventh Supplemental
Indenture limits, qualifies or conflicts with another provision which is required to be included in this Eleventh Supplemental Indenture
by the Trust Indenture Act, the required provision shall control. If any provision of this Eleventh Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply
to this Eleventh Supplemental Indenture as so modified or to be excluded, as the case may be.
SECTION 5.3. Governing
Law.
This Eleventh Supplemental Indenture and the Notes
shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 5.4. Counterparts.
The parties may sign multiple counterparts of
this Eleventh Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one
and the same Eleventh Supplemental Indenture. The words “execution,” “signed,” “signature,”
“delivery,” and words of like import in or relating to this Eleventh Supplemental Indenture or any document to be signed
in connection with this Eleventh Supplemental Indenture shall be deemed to include electronic signatures, deliveries or the keeping
of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto
consent to conduct the transactions contemplated hereunder by electronic means.
SECTION 5.5. Severability.
Each provision of this Eleventh Supplemental Indenture
shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purpose of
this Eleventh Supplemental Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim therefor against any
party hereto.
SECTION 5.6. Ratification.
The Base Indenture, as supplemented and amended
by this Eleventh Supplemental Indenture, is in all respects ratified and confirmed. The Base Indenture and this Eleventh Supplemental
Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Eleventh Supplemental Indenture
supersede any conflicting provisions included in the Base Indenture, unless not permitted by law. The Trustee accepts the trusts created
by the Base Indenture, as supplemented by this Eleventh Supplemental Indenture, and agrees to perform the same upon the terms and conditions
of the Base Indenture, as supplemented by this Eleventh Supplemental Indenture.
SECTION 5.7. Headings.
The Section headings in this Eleventh Supplemental
Indenture are for convenience only and shall not affect the construction thereof.
SECTION 5.8. Effectiveness.
The provisions of this Eleventh Supplemental Indenture
shall become effective as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Eleventh Supplemental Indenture to be duly executed as of the date first above written.
| |
DOLLAR GENERAL CORPORATION, |
| |
as Issuer |
| |
|
| |
By: |
/s/ John W. Garratt |
| |
|
Name: |
John W. Garratt |
| |
|
Title: |
President and |
| |
|
|
Chief Financial Officer |
| |
|
| |
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, |
| |
as Trustee |
| |
|
| |
By: |
/s/ Wally Jones |
| |
|
Name: |
Wally Jones |
| |
|
Title: |
Vice President |
[Signature Page to Eleventh Supplemental
Indenture]
EXHIBIT A
Form of 4.625% Senior Notes due 2027
[Include the following legend on each Note that is a Global Note:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. TRANSFER
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR’S NOMINEE AND LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO HEREIN.]
DOLLAR GENERAL CORPORATION
4.625% Senior Notes due 2027
REGISTERED
No. |
PRINCIPAL AMOUNT: $[ ] |
CUSIP:
256677 AK1
ISIN:
US256677AK14
DOLLAR GENERAL CORPORATION, a Tennessee corporation
(herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($[ ]) on November 1,
2027 (the “Maturity Date”) (except to the extent redeemed or repaid prior to the Maturity Date) and to pay interest
thereon from September 20, 2022 (the “Original Issue Date”) or from the most recent Interest Payment Date to
which interest has been paid or duly provided for at the rate of 4.625% per annum, on the 1st day of May and November (of
each year each such date, an “Interest Payment Date”), commencing on May 1, 2023, until the principal hereof
is paid or made available for payment.
(1) Payment
of Interest. The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date, will, as
provided in the Indenture, be paid, in immediately available funds, to the Person in whose name this Note (or one or more
predecessor Securities) is registered at the close of business on the 15th day of April and October (whether or not a
Business Day, as defined in the Indenture referred to herein), as the case may be, next preceding such Interest Payment Date
(the “Regular Record Date”).
(2) Place
of Payment. Payment of principal, premium, if any, and interest on this Note will be made at the Corporate Trust Office of the Trustee
or such other office or agency of the Company as may be designated for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts; provided, however, that each installment of
interest, premium, if any, and principal on this Note may at the Company’s option be paid in immediately available funds by wire
transfer to an account maintained by the payee located in the United States.
(3) Time
of Payment. In any case where any Interest Payment Date, the Maturity Date or any date fixed for redemption of the Notes shall not
be a Business Day, then (notwithstanding any other provision of the Indenture or this Note), payment of principal, premium, if any, or
interest, if any, need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as
if made on such Interest Payment Date, the Maturity Date or the date so fixed for redemption or repayment, as the case may be, and no
interest shall accrue in respect of the delay.
(4) General.
This Note is one of a duly authorized series of Securities of the Company, issued and to be issued in one or more series under an indenture
(the “Base Indenture”), dated as of July 12, 2012, between the Company and U.S. Bank Trust Company, National
Association, a national banking association, as trustee (herein called the “Trustee,” which term includes any successor
trustee under the Indenture with respect to the series of which this Note is a part), as supplemented by a Eleventh Supplemental Indenture
thereto, dated as of September 20, 2022 (the “Eleventh Supplemental Indenture” and, together with the Base Indenture,
the “Indenture”), between the Company and the Trustee. Reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and delivered; provided that to the extent of any inconsistency
between the terms and provisions in the Indenture and those contained in this Note, the Indenture shall govern. This Note is one of a
duly authorized series of Securities designated as “4.625% Senior Notes due 2027” (collectively, the “Notes”),
initially limited in aggregate principal amount to FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000).
(5) Further
Issuance. The Company may, from time to time, without the consent of the Holders, issue and sell additional Notes (“Additional
Notes”) ranking equally and ratably with the Notes in all respects (other than the issue date, and to the extent applicable,
issue price, initial date of interest accrual and initial interest payment date of such Additional Notes). Any such Additional Securities
shall be consolidated with and form a single series with the Notes for all purposes under the Indenture. If the Additional Notes are
not fungible with the Notes for U.S. federal income tax purposes, the Additional Notes will have a different CUSIP number.
(6) Ranking.
The Notes shall constitute senior indebtedness of the Company and shall rank equally in right of payment with all existing and future
senior indebtedness of the Company and, to the extent of the value of the collateral, will be effectively subordinated to the Company’s
secured indebtedness.
(7) Events
of Default. If an Event of Default with respect to the Notes shall have occurred and be continuing, the principal of the Notes may
be declared due and payable in the manner and with the effect provided in the Indenture.
(8) Sinking
Fund. The Notes are not subject to any sinking fund.
(9) Optional
Redemption. Prior to October 1, 2027 (the “Par Call Date”), the Company may redeem the Notes at its option,
in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded
to three decimal places) equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments
of principal and interest thereon discounted to the redemption date (assuming that such Notes matured on the Par Call Date) on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, less (b) interest
accrued to the redemption date, and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued
and unpaid interest thereon to the redemption date.
(10) Par
Redemption. Notwithstanding the foregoing paragraph (9), on or after the Par Call Date, the Company may redeem the Notes at its option,
in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of such Notes being
redeemed plus accrued and unpaid interest thereon to the redemption date.
(11) Offer
to Repurchase Upon a Change of Control Triggering Event. If a Change of Control Triggering Event occurs with respect to the Notes,
unless the Company has exercised its right to redeem the Notes as described above under “Optional Redemption” or has exercised
its option to satisfy and discharge the Indenture under Article IV thereof, Holders shall have the right to require the Company
to repurchase all or any part of their Notes for a price in cash equal to 101% of the then outstanding aggregate principal amount of
Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of purchase.
(12) Defeasance
and Covenant Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related Events of Default, in each case which provisions shall
apply to this Note.
(13) Modification
and Waivers; Obligations of the Company Absolute. The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities.
Such amendment may be effected under the Indenture at any time by the Company and the Trustee with the consent of the Holders
of not less than a majority in aggregate principal amount of the outstanding Notes affected thereby. The Indenture also contains
provisions permitting the Holders of not less than a majority in aggregate principal amount of the Securities at the time
outstanding, on behalf of the Holders of all outstanding Securities, to waive compliance by the Company with certain provisions of
the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority in aggregate principal amount
of the outstanding Securities of individual series to waive on behalf of all of the Holders of Securities of such individual series
certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon
the Holder of this Note and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture
and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of, and premium, if any, and interest on, this Note at the time, place, and rate, and in the coin or currency, herein
prescribed.
(14) Limitation
on Suits. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Notes, the Holders of more than 25% in principal amount of the outstanding
Notes shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceedings as trustee, and
the Trustee shall not have received from the Holders of a majority in principal amount of the outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 90 days; provided, however, that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or interest on, this Note on or after
the respective due dates expressed herein.
(15) Registration
of Transfer or Exchange. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer
of this Note is registrable in the register of the Notes maintained by the Registrar upon surrender of this Note for registration of
transfer, at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar, duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for
any such registration of transfer or exchange (except as provided by the Indenture), but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Holder as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
(16) Defined
Terms. All terms used in this Note, which are defined in the Indenture and are not otherwise defined herein, shall have the meanings
assigned to them in the Indenture.
(17) Governing
Law. The Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York.
Unless the certificate of authentication hereon
has been executed by the Trustee by manual, electronic or facsimile signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left
Blank]
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated: , 2022
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DOLLAR GENERAL CORPORATION, |
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as Issuer |
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By: |
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Name: John W. Garratt |
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Title: President and Chief Financial Officer |
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By: |
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Name: Barbara Springer |
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Title: Vice President and Treasurer |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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U.S. BANK TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee |
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By: |
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Name: Wally Jones |
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Title: Vice President |
Dated: , 2022
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
to transfer said Note on the books of the Trustee, with full power
or substitution in the premises.
| Dated:
___________ |
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____________________________________________________
NOTICE:
The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular, without
alteration or enlargement or any change whatsoever. |
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Signature
of Guarantee |
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