AGENCY AGREEMENT
Dated as of June 2, 1999
between
DOLLAR TREE DISTRIBUTION, INC.,
as the Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the
Owner Trustee under the DTSD Realty Trust 1999-1,
as the Lessor
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF USAGE...................................... 2
1.1 Definitions................................................... 2
1.2 Interpretation................................................ 2
ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT........................... 2
2.1 Appointment................................................... 2
2.2 Acceptance and Undertaking.................................... 3
2.3 Term.......................................................... 3
2.4 Scope of Authority............................................ 3
2.5 Delegation of Duties.......................................... 4
2.6 Covenants of the Construction Agent........................... 4
ARTICLE III THE PROPERTIES................................................. 6
3.1 Construction.................................................. 6
3.2 Amendments; Modifications..................................... 6
ARTICLE IV PAYMENT OF FUNDS................................................ 7
4.1 Right to Receive Construction Cost............................ 7
ARTICLE V EVENTS OF DEFAULT................................................ 7
5.1 Events of Default............................................. 7
5.2 Damages....................................................... 8
5.3 Remedies; Remedies Cumulative................................. 8
5.4 Limitation on Recourse........................................ 10
ARTICLE VI THE LESSOR'S RIGHTS............................................. 11
6.1 Exercise of the Lessor's Rights............................... 11
6.2 The Lessor's Right to Cure the Construction Agent's Defaults.. 11
ARTICLE VII MISCELLANEOUS.................................................. 11
7.1 Notices....................................................... 11
7.2 Successors and Assigns........................................ 11
7.3 GOVERNING LAW................................................. 11
7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS; ARBITRATION....... 12
7.5 Amendments and Waivers........................................ 12
7.6 Counterparts.................................................. 12
7.7 Severability.................................................. 12
7.8 Headings and Table of Contents................................ 12
7.9 WAIVER OF JURY TRIAL.......................................... 12
i
AGENCY AGREEMENT
THIS AGENCY AGREEMENT, dated as of June 2, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association ("FSB"), not individually, but solely as Owner Trustee under
the DTSD Realty Trust 1999-1 (the "Lessor") and DOLLAR TREE DISTRIBUTION, INC. a
Virginia corporation (the "Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are parties to that certain
Lease Agreement dated as of even date herewith (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Lease"), pursuant
to which the Construction Agent, as lessee (in such capacity, the "Lessee") has
agreed to lease certain Land, Improvements and Equipment and/or to sublease a
ground leasehold in certain Properties subject to one (1) or more Ground Leases
from the Lessor.
B. In connection with the execution and delivery of the Participation
Agreement, the Lease and the other Operative Agreements, and subject to the
terms and conditions hereof, (i) the Lessor desires to appoint the Construction
Agent as its sole and exclusive agent in connection with the identification and
acquisition or ground lease of the Properties (provided, title to the Properties
shall be held in the name of the Lessor, except that the interest of the Lessor
in certain of the Properties shall be a ground leasehold interest pursuant to
one (1) or more Ground Leases, if requested by the Construction Agent) and the
development, acquisition, installation, construction and testing of the
Improvements and the Equipment in accordance with the Plans and Specifications
and (ii) the Construction Agent desires, for the benefit of the Lessor, to
identify and acquire or ground lease the Properties and to cause the
development, acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the Properties in
accordance with the Plans and Specifications and to undertake such other
liabilities and obligations as are herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
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ARTICLE I
DEFINITIONS; RULES OF USAGE
1.1 Definitions.
For purposes of this Agreement, capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of June 2,
1999 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among the Construction Agent, the various parties
thereto from time to time, as the Guarantors, the Lessor, and First Union
National Bank ("Bank"), as lender and holder. Unless otherwise indicated,
references in this Agreement to articles, sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in this Agreement.
1.2 Interpretation.
The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Agreement.
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT
2.1 Appointment.
Subject to the terms and conditions hereof, the Lessor hereby
irrevocably designates and appoints the Construction Agent as its exclusive
agent, and the Construction Agent accepts such appointment, in connection with
the identification and acquisition from time to time of the Properties
(provided, title to the Properties shall be held in the name of the Lessor,
except that the interest of the Lessor in certain Properties shall be a ground
leasehold interest pursuant to one (1) or more Ground Leases if requested by the
Construction Agent) and the development, acquisition, installation, construction
and testing of the Improvements, the Equipment and the other components of the
Properties in accordance with the Plans and Specifications on the Land, and
pursuant to the terms of the Operative Agreements. Notwithstanding any
provisions hereof or in any other Operative Agreement to the contrary, the
Construction Agent acknowledges and agrees that the Lessor shall advance no more
than the sum of the aggregate Commitment plus the aggregate amount of the Holder
Commitments in regard to the Properties (including without limitation for any
and all Advances in the aggregate under the Credit Agreement and under the Trust
Agreement).
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2.2 Acceptance and Undertaking.
The Construction Agent hereby unconditionally accepts the agency
appointment and undertakes, for the benefit of the Lessor, to identify and
acquire certain Properties (provided, title to the Properties shall be held in
the name of the Lessor, except that the interest of the Lessor in certain
Properties shall be a ground leasehold interest pursuant to one (1) or more
Ground Leases if requested by the Construction Agent) and the development,
acquisition, installation, construction and testing of the Improvements, the
Equipment and the other components of the Properties in accordance with the
Plans and Specifications and the Operative Agreements.
2.3 Term.
This Agreement shall commence on the date hereof and shall terminate on
the Construction Period Termination Date.
2.4 Scope of Authority.
(a) The Lessor hereby expressly authorizes the Construction
Agent, or any agent or contractor of the Construction Agent, and the
Construction Agent unconditionally agrees for the benefit of the
Lessor, subject to Section 2.4(b), to take all action necessary or
desirable for the performance and satisfaction of any and all of the
Lessor's obligations under any construction agreement and to fulfill
all of the obligations of the Construction Agent including without
limitation:
(i) the identification and assistance with the
acquisition of Properties in accordance with the terms and
conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to
the development, acquisition, installation, construction and
testing of the related Improvements, Equipment and other
components of the applicable Property and performing all
engineering work related thereto;
(iii) (A) negotiating, entering into, performing and
enforcing all contracts and arrangements to acquire or ground
lease the Properties and to procure the equipment necessary to
construct the Properties and (B) negotiating, executing,
performing and enforcing all contracts and arrangements to
develop, acquire, install, construct and test the
Improvements, the Equipment and the other components of the
Properties on such terms and conditions as are customary and
reasonable in light of local and national standards and
practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses,
consents, approvals, entitlements and other authorizations,
including without limitation all of the foregoing required for
the Properties and the use and occupancy thereof and those
required under applicable Law (including without limitation
Environmental
3
Laws), from all Governmental Authorities in connection with
the development, acquisition, installation, construction and
testing of the Improvements, the Equipment and the other
components of the Properties in accordance with the Plans and
Specifications;
(v) maintaining all books and records with respect to
the Properties and the construction, operation and management
thereof; and
(vi) performing any other acts necessary in
connection with the identification and acquisition or ground
leasing of the Properties and the development, acquisition,
installation, construction and testing of the related
Improvements, Equipment and all other additional components of
the Properties in accordance with the Plans and
Specifications.
(b) Neither the Construction Agent nor any of its Affiliates
or agents shall enter into any contract or consent to any contract in
the name of the Lessor without the Lessor's prior written consent, such
consent to be given or withheld in the exercise of the Lessor's
reasonable discretion; provided, however, that (i) no such contract
will increase the obligations of the Lessor beyond the obligations of
the Lessor as are expressly set forth in the Operative Agreements and
(ii) each such contract shall be expressly non-recourse to the Lessor
on terms and conditions that are reasonably acceptable to the Lessor.
(c) Subject to the terms and conditions of this Agreement and
the other Operative Agreements, the Construction Agent shall have sole
management and control over the installation, construction and testing
means, methods, sequences and procedures with respect to the
Properties.
2.5 Delegation of Duties
The Construction Agent may execute any of its duties under this
Agreement by or through agents, contractors, employees or attorneys-in-fact;
provided, however, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement.
2.6 Covenants of the Construction Agent.
The Construction Agent hereby covenants and agrees that it will:
(a) following the Construction Commencement Date for each
Property, cause the development, acquisition, installation,
construction and testing of such Property to be prosecuted in a good
and workmanlike manner, and respecting each Property in accordance with
the applicable Plans and Specifications, the Construction Budget, the
applicable contracts relating to the Improvements, the Equipment, other
components of such Property and procurement of construction materials,
the applicable construction
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contracts, the applicable construction schedule, prevalent industry
practices and otherwise in accordance with Section 3.1 hereof;
(b) not commence construction with respect to any Improvements
on a date that is within six (6) months prior to the Construction
Period Termination Date;
(c) cause the Completion Date for any Improvements to occur on
or before the earlier of (i) the date that is twelve (12) months after
the initial Construction Advance made in connection with such
Improvements or (ii) the Construction Period Termination Date, in each
case free and clear (by removal or bonding) of Liens or claims for
materials supplied or labor or services performed in connection with
the development, acquisition, installation, construction or testing
thereof;
(d) cause all outstanding punch list items with respect to
such Improvements to be completed by the Completion Date;
(e) at all times subsequent to the initial Advance respecting
a Property (i) cause good and marketable title to the applicable
Property to vest in the Owner Trustee (except that the interest of the
Lessor in certain Properties shall be a ground leasehold interest
pursuant to one (1) or more Ground Leases if requested by the
Construction Agent) (ii) cause a valid, perfected, first priority Lien
on the applicable Property to be in place in favor of the Bank, (iii)
file all necessary documents under the applicable real property law and
Article 9 of the Uniform Commercial Code to perfect such title and
Liens and (iv) not permit Liens (other than Permitted Liens and Lessor
Liens) to be filed or maintained respecting the applicable Property;
(f) no less than five (5) Business Days prior to the scheduled
date for the initial Construction Advance to be made in connection with
any Property, the Construction Agent shall deliver to the Bank (for the
benefit of the Lessor) true, complete and correct copies of the
Construction Budget therefor;
(g) procure insurance for the Properties during the
Construction Period in accordance with the provisions of Article XIV of
the Lease; and
(h) on or before the Construction Period Termination Date,
cause the Rent Commencement Date to occur with respect to all
Properties or purchase any such Properties for an amount equal to the
sum referenced in Section 5.3(b) hereof and otherwise in compliance
with the other terms and provisions of the Operative Agreements.
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ARTICLE III
THE PROPERTIES
3.1 Construction.
The Construction Agent shall cause the Improvements, the Equipment and
all other components of the Properties to be developed, acquired, installed,
constructed and tested in compliance with all Legal Requirements, all Insurance
Requirements, all manufacturer's specifications and standards and the standards
maintained by the Construction Agent for similar properties owned or operated by
the Construction Agent, and all specifications and standards applicable to
properties of the Lessee which are similar to the Permitted Facilities, unless
non-compliance, individually or in the aggregate, shall not have and could not
be reasonably expected to have a Material Adverse Effect.
3.2 Amendments; Modifications.
(a) The Construction Agent may at any time revise, amend or modify (i)
the Plans and Specifications without the consent of the Lessor; provided, that
any such amendment to the Plans and Specifications does not (x) result in the
Completion Date of the Improvements occurring on or after the Construction
Period Termination Date or (y) result in the cost of all Improvements exceeding
the amount specified in the Construction Budget, as amended from time to time,
or an amount equal to the sum of the then Available Commitments plus the then
Available Holder Commitments (reduced by the amount, if any, necessary to pay
for the cost of construction and development of Improvements on other Properties
which are currently under construction but have not yet been completed (such
amount the "Unfunded Amount")), and (ii) the Construction Budget and enter into
any related amendments, modifications or supplements without the consent of the
Lessor; provided, that such revisions, amendments or modifications to the Plans
and Specifications or related amendments, modifications or supplements to the
Construction Budget do not result in any increase in total Property Costs
greater than the amount specified in the Construction Budget, as amended from
time to time, or the then Available Commitments and Available Holder Commitment
(reduced by the Unfunded Amount). Notwithstanding the foregoing, it is
specifically understood and agreed that if at any time the total Property Costs
remaining to be expended exceed the Unfunded Amount, the Construction Agent
shall have the rights to purchase set forth in Section 5.3(c) and the
limitations on recourse set forth in Section 5.4.
(b) The Construction Agent agrees that it will not implement any
revision, amendment or modification to the Plans and Specifications for any
Property if the aggregate effect of such revision, amendment or modification,
when taken together with any previous or contemporaneous revision, amendment or
modification to the Plans or Specifications for any Property, would cause a
material reduction in value in excess of the cost reduction of such revision,
amendment or modification of the Property when completed, unless such revision,
amendment or modification is required by Legal Requirements.
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ARTICLE IV
PAYMENT OF FUNDS
4.1 Right to Receive Construction Cost.
(a) In connection with the development, acquisition,
installation, construction and testing of any Property and during the
course of the construction of the Improvements on any Property, the
Construction Agent may request that the Lessor advance funds for the
payment of Property Acquisition Costs or other Property Costs, and the
Lessor will comply with such request to the extent provided for under
the Participation Agreement. The Construction Agent and the Lessor
acknowledge and agree that the Construction Agent's right to request
such funds and the Lessor's obligation to advance such funds for the
payment of Property Acquisition Costs or other Property Costs is
subject in all respects to the terms and conditions of the
Participation Agreement and each of the other Operative Agreements.
Without limiting the generality of the foregoing it is specifically
understood and agreed that in no event shall the aggregate amounts
advanced by the Bank for Property Acquisition Costs or other Property
Costs and any other amounts due and owing hereunder or under any of the
other Operative Agreements exceed the sum of the aggregate Commitment
plus the aggregate amount of the Holder Commitments, including without
limitation such amounts owing for (i) development, acquisition,
installation, construction and testing of the Properties, (ii)
additional amounts which accrue or become due and owing under the
Credit Agreement or Trust Agreement as obligations of the Lessor prior
to any Completion Date or (iii) any other purpose.
(b) The proceeds of any funds made available to the Lessor to
pay Property Acquisition Costs or other Property Costs shall be made
available to the Construction Agent in accordance with the Requisition
relating thereto and the terms of the Participation Agreement. The
Construction Agent will use such proceeds only to pay the Property
Acquisition Costs or other Property Costs set forth in the Requisition
relating to such funds.
ARTICLE V
EVENTS OF DEFAULT
5.1 Events of Default.
If any one (1) or more of the following events (each an "Agency
Agreement Event of Default") shall occur:
(a) the Construction Agent fails to apply any funds paid by
the Lessor to the Construction Agent in a manner consistent with the
requirements of the Operative Agreements and as specified in the
applicable Requisition for the development,
7
acquisition, installation, construction and testing of the Properties
and related Improvements and Equipment or otherwise respecting the
Properties to the payment of Property Acquisition Costs or other
Property Costs;
(b) the Completion Date with respect to any Property shall
fail to occur for any reason on or prior to the Construction Period
Termination Date or the Construction Agent shall abandon or permanently
discontinue the construction and development of such Construction
Period Property (which abandonment or permanent discontinuance shall be
deemed to have occurred if no work at such Construction Period Property
is undertaken or completed during a continuous period of sixty (60)
days or more);
(c) any Event of Default (as such term is defined in Appendix
A to the Participation Agreement) shall have occurred and not be cured
within any cure period expressly permitted under the terms of the
applicable Operative Agreement;
(d) the Construction Agent shall materially breach any of its
representations or warranties under any Operative Agreement or shall
fail to observe or perform any term, covenant or condition of any
Operative Agreement other than as set forth in paragraphs (a), (b) or
(c) of this Section 5.1 and such failure to observe or perform any such
term, covenant or condition shall continue for more than fifteen (15)
days after notice thereof to the Construction Agent; and
(e) there occurs an Environmental Violation that is reasonably
likely to cost or actually costs more than $50,000 to remediate;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration of
the time fixed in such notice and the payment of all amounts owing by the
Construction Agent hereunder (including without limitation any amounts specified
under Section 5.3 hereof), this Agreement shall terminate. The Construction
Agent shall pay all costs and expenses incurred by or on behalf of the Lessor,
including without limitation fees and expenses of counsel, as a result of any
Agency Agreement Event of Default hereunder.
5.2 Damages.
The termination of this Agreement pursuant to Section 5.1 shall in no
event relieve the Construction Agent of its liability and obligations hereunder,
all of which shall survive any such termination.
5.3 Remedies; Remedies Cumulative.
(a) If an Agency Agreement Event of Default shall have
occurred and be continuing, the Lessor shall have all rights available
to the Lessor under the Lease and the
8
other Operative Agreements and all other rights otherwise available at
law, equity or otherwise.
(b) Upon the occurrence of an Agency Agreement Event of
Default, the Lessor shall have (in addition to its rights otherwise
described in this Agreement or existing at law, equity or otherwise)
the option (and shall be deemed automatically, and without any further
action, to have exercised such option upon the occurrence of any Lease
Event of Default arising under Sections 17.1(g), (h) or (i) of the
Lease) to transfer and convey to the Construction Agent upon a date
designated by the Lessor all right, title and interest of the Lessor in
and to any Property or Properties (including without limitation any
Land and/or any Improvements, any interest in any Improvements, any
Equipment and any Property then under construction) for which the Rent
Commencement Date has not yet occurred (a "Construction Period
Property"). On any transfer and conveyance date specified by the Lessor
pursuant to this Section 5.3(b), (i) the Lessor shall transfer and
convey (at the cost of the Construction Agent) all right, title and
interest of the Lessor in and to any or all such Construction Period
Properties free and clear of the Lien of the Lease and all Lessor
Liens, (ii) the Construction Agent hereby covenants and agrees that it
will accept such transfer and conveyance of right, title and interest
in and to the respective Construction Period Property or Construction
Period Properties and (iii) the Construction Agent hereby promises to
pay to the Lessor, as liquidated damages (it being agreed that it would
be impossible accurately to determine actual damages), an aggregate
amount equal to the Termination Value of any or all such Construction
Period Properties. The Construction Agent specifically acknowledges and
agrees that its obligations under this Section 5.3(b), including
without limitation its obligations to accept the transfer and
conveyance of Construction Period Properties and its payment
obligations described in subparagraph (iii) of this Section 5.3(b),
shall be absolute and unconditional under any and all circumstances and
shall be performed and/or paid, as the case may be, without notice or
demand and without any abatement, reduction, diminution, setoff,
defense, counterclaim or recoupment whatsoever. Notwithstanding the
foregoing provisions of this Section 5.3(b), the Lessor shall have the
right in its sole discretion to rescind any exercise of its option
under this Section 5.3(b) upon the giving of its written confirmation
of such rescission to the Construction Agent on or prior to the earlier
to occur of (a) the actual date of transfer and (b) the date one
hundred and twenty (120) days after the date the Lessor has given
notice of its intent to transfer and convey any Property to the
Construction Agent as referenced above in this Section 5.3(b).
(c) The Construction Agent shall have the right to cure an
Agency Agreement Event of Default hereunder with respect to any given
Property by purchasing or causing the Lessee to purchase such Property
from the Lessor (to the extent such Agency Agreement Event of Default
is no longer continuing with respect to any other Property remaining
subject to this Agreement after such purchase) for an amount equal to
the liquidated damages amount set forth in Section 5.3(b) of this
Agreement.
(d) No failure to exercise and no delay in exercising, on the
part of the Lessor, any right, remedy, power or privilege under this
Agreement or under the other Operative
9
Agreements shall operate as a waiver thereof; nor shall any single or
partial exercise of any right remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
5.4 Limitation on Recourse.
Notwithstanding anything contained herein or in any other Operative
Agreement to the contrary, upon the occurrence and during the continuance of an
Agency Agreement Event of Default relating solely to one or more of the
Construction Period Properties, the maximum aggregate amount that the Lessor, or
any person or entity acting by or through the Lessor, including without
limitation the Bank, shall be entitled to recover from the Lessee on account of
such Agency Agreement Event of Default shall be an amount equal to the sum of
(i) 89% of the aggregate Property Cost for all Construction Period Properties,
exclusive of the portion of the aggregate Property Cost expended for the
purchase of the Land related to such Construction Period Properties (the "Land
Cost") plus (ii) 100% of the Land Cost, plus (iii) all amounts owed by the
Lessee or the Construction Agent under or with respect to any Operative
Agreement in connection with any Environmental Violation related to such
Construction Period Properties plus (iv) any loss, cost or damage suffered by
the Lessor or the Bank in connection with or as a result of (1) fraud,
misapplication of funds, illegal acts or willful misconduct on the part of the
Lessee or the Construction Agent or (2) any claim by any third party caused by
or resulting from the Lessee's or the Construction Agent's actions or failure to
act while in possession or control of any Construction Period Property (it being
understood and agreed that the Construction Agent shall be deemed to be in
possession and control of each Construction Period Property at all times until
such possession and control is relinquished pursuant to the terms of the
Operative Agreements) or (3) a bankruptcy of the Lessee or the Construction
Agent minus (v) any amount expended by the Construction Agent on behalf of the
Lessor if the Lessor is obligated to reimburse the Construction Agent for such
amount but such reimbursement has not yet occurred. The Construction Agent
nonetheless acknowledges and agrees that (y) even though the maximum aggregate
recovery from the Credit Parties is limited as aforesaid, the Lessor's right of
recovery from the Construction Period Properties (as opposed to any recovery
from the Credit Parties) is not so limited and the Lessor shall be entitled to
recover 100% of the amounts owed to the Lessor in accordance with the Operative
Agreements from its interest in the Properties and (z) the provisions of this
Section 5.4 shall in no way limit or otherwise affect the obligations of the
Lessee and the Construction Agent (or the recourse of the Bank against the
Lessee and the Construction Agent) with respect to the Properties that are not
Construction Period Properties (whether such obligations or recourse arise under
the Operative Agreements or otherwise).
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ARTICLE VI
THE LESSORS RIGHTS
6.1 Exercise of the Lessors Rights.
Subject to the Excepted Payments, the Construction Agent and the Lessor
hereby acknowledge and agree that, subject to and in accordance with the terms
of the Security Agreement made by the Lessor in favor of the Bank, the rights
and powers of the Lessor under this Agreement have been assigned to the Bank.
6.2 The Lessors Right to Cure the Construction Agents Defaults.
The Lessor, without waiving or releasing any obligation or Agency
Agreement Event of Default, may (but shall be under no obligation to) remedy any
Agency Agreement Event of Default for the account of and at the sole cost and
expense of the Construction Agent. All out-of-pocket costs and expenses so
incurred (including without limitation fees and expenses of counsel), together
with interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by the Lessor, shall be paid by the Construction Agent to the
Lessor on demand.
ARTICLE VII
MISCELLANEOUS
7.1 Notices.
All notices required or permitted to be given under this Agreement
shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.
7.2 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
Lessor, the Construction Agent and their respective successors and the assigns
of the Lessor. The Construction Agent may not assign this Agreement or any of
its rights or obligations hereunder or with respect to any Property in whole or
in part to any Person without the prior written consent of the Bank and the
Lessor.
7.3 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
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7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS; ARBITRATION.
The provisions of the Participation Agreement relating to submission to
jurisdiction, venue AND ARBITRATION are hereby incorporated by reference herein,
mutatis mutandis.
7.5 Amendments and Waivers.
This Agreement may not be terminated, amended, supplemented, waived or
modified except in accordance with the provisions of Section 12.4 of the
Participation Agreement.
7.6 Counterparts.
This Agreement may be executed in any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
(1) and the same instrument.
7.7 Severability.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.8 Headings and Table of Contents.
The headings and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7.9 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE
CONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM
THEREUNDER.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DOLLAR TREE DISTRIBUTION, INC,
as the Construction Agent
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Sr. V.P.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as Owner Trustee under the DTSD Realty
Trust 1999-1, as the Lessor
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
