$250,000,000 7.125% Senior Notes due
2018
OFFICERS’ CERTIFICATE
PURSUANT TO SECTION 3.2 OF THE INDENTURE
A. Pursuant
to resolutions of the Board of Directors of AutoZone, Inc., a
Nevada corporation (the “Company”), adopted on
June 21, 2008 (the “Resolutions”), the
undersigned, Charlie Pleas, III, Senior Vice President and
Controller, and William T. Giles, Executive Vice President and
Chief Financial Officer, of the Company certify that pursuant to
the Resolutions and Section 3.2 of the Indenture, dated as of
August 8, 2003 (the “Indenture”), between the
Company and The Bank of New York Mellon Trust Company, N.A., as
successor in interest to Bank One Trust Company, N.A., as trustee
(the “Trustee”), there is hereby established a series
of Securities (as that term is defined in the Indenture), the terms
and form of which shall be as follows (capitalized terms not
defined herein shall have the meanings assigned to them in the
Indenture):
(a) The
title of the series of the Securities shall be “7.125% Senior
Notes due 2018” (the “2018 Notes”).
(b) The
2018 Notes shall be issued at a price of 99.550% of the principal
amount thereof.
(c) The
aggregate principal amount of the 2018 Notes that may be
authenticated and delivered under the Indenture (except for 2018
Notes authenticated and delivered upon registration of, transfer
of, or in exchange for, or in lieu of, other 2018 Notes pursuant to
Sections 3.7, 3.8, 3.11, 4.7 or 10.6 of the Indenture)
initially shall be $250,000,000. The Company may, without the
consent of the Holders of the 2018 Notes, create and issue
additional 2018 Notes ranking equally and ratably with the 2018
Notes and otherwise identical to the 2018 Notes in all respects,
except for the payment of interest accruing prior to the issue date
of such additional 2018 Notes and, in some cases, the first payment
of interest following the issue date of such additional 2018 Notes,
so that such further 2018 Notes shall form a single series with the
2018 Notes.
(d) The
principal amount of the 2018 Notes shall be payable in full on
August 1, 2018, subject to and in accordance with the
provisions of the Indenture.
(e) The
2018 Notes shall bear interest at the rate of 7.125% per annum
(unless such rate is adjusted pursuant to clause (o) hereof)
from August 4, 2008, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable
semi-annually on February 1 and August 1 of each year (each an
“Interest Payment Date”), commencing on
February 1, 2009, until the principal amount of the 2018 Notes
has been paid or duly provided for. January 15 and
July 15 (whether or not a Business Day), as the case may be,
next preceding an Interest Payment Date, shall be a “Regular
Record Date” for the interest payable on such Interest
Payment Date.
(f) The
principal of and interest on the 2018 Notes shall be payable at the
Corporate Trust Office of the Trustee.
(g) The
2018 Notes will be redeemable, at any time in whole or from time to
time in part, at the option of the Company, at a redemption price
equal to accrued and unpaid interest on the principal amount being
redeemed to the redemption date plus the greater of (i) 100%
of the principal amount of such 2018 Notes; and (ii) the sum
of the present values of the remaining scheduled
payments
Section 3.2
Officers’ Certificate
of principal
and interest on such 2018 Notes (not including any portion of such
payments of interest accrued to the date of redemption) discounted
to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus 50 basis points, as determined in good faith by
the Company.
“Adjusted
Treasury Rate” means, with respect to any date of redemption,
the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that
date of redemption.
“Comparable
Treasury Issue” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to
the remaining term of the 2018 Notes to be redeemed that would be
used, at the time of selection and under customary financial
practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such 2018
Notes.
“Comparable
Treasury Price” means, with respect to any date of
redemption, the average of the Reference Treasury Dealer Quotations
for such date of redemption, after excluding the highest and lowest
of such Reference Treasury Dealer Quotations, or if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all Reference Treasury Dealer Quotations.
“Quotation
Agent” means one of the Reference Treasury Dealer appointed
by the Company.
“Reference
Treasury Dealer” means each of Banc of America Securities
LLC, Citigroup Global Markets Inc., SunTrust Robinson Humphrey,
Inc. and their respective successors and any other primary U.S.
government securities dealer in New York City the Company shall
select (each, a “Primary Treasury Dealer”). If any of
the foregoing ceases to be a Primary Treasury Dealer, the Company
shall substitute therefor another Primary Treasury
Dealer.
“Reference
Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any date of redemption, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day preceding such date of redemption.
(h) The
2018 Notes will be issued only in registered form in minimum
denominations of $2,000 and integral multiples of
$1,000.
(i) The
2018 Notes shall be issuable in whole or in part in the form of one
or more Global Securities. Such Global Securities may be exchanged
in whole or in part for individual Securities in definitive form
only on the terms and conditions set forth in the Indenture. The
initial Depositary for such Global Securities shall be The
Depository Trust Company.
(j) The
2018 Notes shall be denominated in Dollars and the payment of the
principal of and interest, if any, on the 2018 Notes shall be in
Dollars.
(k) The
2018 Notes shall be defeasible as provided in Article IX of
the Indenture.
(l) The
2018 Notes shall not be subject to any mandatory sinking
fund.
Section 3.2
Officers’ Certificate
(m) If
a Change of Control Triggering Event occurs with respect to the
2018 Notes, unless the Company has exercised its right to redeem
the 2018 Notes as described in Section 4.2 of the Indenture
and clause (A)(g) of this Officers’ Certificate, Holders of
2018 Notes shall have the right to require the Company to make an
offer to each Holder of 2018 Notes to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that Holder’s 2018 Notes pursuant to the offer
described below (the “Change of Control Offer”) on the
terms set forth in the 2018 Notes. In the Change of Control Offer,
the Company shall be required to offer payment in cash equal to
101% of the aggregate principal amount of 2018 Notes repurchased,
plus accrued and unpaid interest, if any, on the 2018 Notes
repurchased to the date of repurchase (the “Change of Control
Payment”). Within 30 days following any Change of
Control Triggering Event or, at the Company’s option, prior
to the date of the consummation of any Change of Control, but after
the public announcement of the transaction that constitutes or may
constitute the Change of Control, the Company shall be required to
mail a notice to Holders of 2018 Notes, with a copy to the Trustee,
describing the transaction or transactions that constitute or may
constitute the Change of Control Triggering Event and offering to
repurchase the 2018 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
required by the 2018 Notes and described in such notice. The notice
shall, if mailed prior to the date of the consummation of the
Change of Control, state that the Change of Control Offer is
conditioned on the Change of Control Triggering Event occurring on
or prior to the applicable Change of Control Payment Date. 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 2018 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 Triggering Event provisions of the 2018 Notes,
the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its
obligations under the Change of Control Triggering Event provisions
of the 2018 Notes by virtue of such conflicts.
“Capital
Stock” means the capital stock of every class whether now or
hereafter authorized, regardless of whether such capital stock
shall be limited to a fixed sum or percentage with respect to the
rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such
corporation.
“Change of
Control” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance
or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of
all or substantially all of the Company’s assets and the
assets of its Subsidiaries, taken as a whole, to any Person, other
than the Company or one of its Subsidiaries, taken as a whole, to
any Person, 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 becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of the Company’s outstanding
Voting Stock or other Voting Stock into which the Company’s
Voting Stock is reclassified, consolidated, exchanged or changed,
measured by voting power rather than number of shares; (3) 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
Company’s outstanding Voting Stock or the Voting Stock of
such other Person is converted into or exchanged for cash,
securities or other property, other than any such transaction where
the shares of the Company’s Voting Stock outstanding
immediately prior to such transaction
|
