SECURITY AGREEMENT
Dated as of June 2, 1999
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee under
the DTSD Realty Trust 1999-1
and
FIRST UNION NATIONAL BANK,
as Lender and Holder
and accepted and agreed to by
DOLLAR TREE DISTRIBUTION, INC.
TABLE OF CONTENTS
1. Definitions............................................................... 1
2. Grant of Security Interest................................................ 3
3. Payment of Obligations.................................................... 5
4. Other Covenants........................................................... 5
5. Default; Remedies......................................................... 6
6. Remedies Not Exclusive.................................................... 6
7. Performance by the Bank of the Borrower's Obligations..................... 7
8. Duty of the Bank.......................................................... 7
9. Powers Coupled with an Interest........................................... 7
10. Execution of Financing Statements........................................ 7
11. Security Agreement Under Uniform Commercial Code......................... 8
12. [Intentionally Left Blank]............................................... 8
13. Notices.................................................................. 9
14. Severability............................................................. 9
15. Amendment in Writing; No Waivers; Cumulative Remedies.................... 9
16. Section Headings......................................................... 9
17. Successors and Assigns................................................... 9
18. The Borrower's Waiver of Rights.......................................... 10
19. GOVERNING LAW............................................................ 10
20. Obligations Are Without Recourse......................................... 10
21. Partial Release; Full Release............................................ 10
22. Miscellaneous............................................................ 10
23. Conflicts with Participation Agreement................................... 11
24. LESSEE AS A PARTY........................................................ 11
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SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of June 2, 1999 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Security Agreement"), is made between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually, but solely as
Owner Trustee under the DTSD Realty Trust 0000-0 (xxx "Xxxxxxxx"), FIRST UNION
NATIONAL BANK, a national banking association ("Bank"), as lender under the
Credit Agreement dated as of June 2, 1999 (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Credit
Agreement") by and among the Borrower and Bank, and as holder of the
certificates issued pursuant to the Trust Agreement dated as of June 2, 1999 (as
amended, modified, extended, supplemented, restated and/or replaced from time to
time, the "Trust Agreement") among the Borrower, in its individual capacity
thereunder and in its capacity as Owner Trustee thereunder and Bank. This
Security Agreement is accepted and agreed to by DOLLAR TREE DISTRIBUTION, INC.,
a Virginia corporation.
Preliminary Statement
Pursuant to the Credit Agreement, Bank has agreed to make Loans to the
Borrower in an aggregate amount not to exceed $17,460,000 upon the terms and
subject to the conditions set forth therein, to be evidenced by the Notes issued
by the Borrower under the Credit Agreement. Pursuant to the Trust Agreement,
Bank has agreed to purchase the ownership interests of the Trust created thereby
in an aggregate amount not to exceed $540,000 upon the terms and subject to the
conditions set forth therein, to be evidenced by the Certificates issued by the
Borrower under the Trust Agreement. The Borrower is, or shall be upon the date
of the initial Advance with respect to each Property, the legal and beneficial
owner of such Property (except the Borrower may have a ground leasehold interest
in certain Properties pursuant to one (1) or more Ground Leases).
It is a condition, among others, to the obligation of Bank to make
Loans to the Borrower under the Credit Agreement and to make Holder Advances
under the Trust Agreement that the Borrower shall have executed and delivered
this Security Agreement.
NOW, THEREFORE, in consideration of the premises and to induce Bank to
make Loans under the Credit Agreement and to make Holder Advances under the
Trust Agreement, the Borrower hereby agrees with the Bank as follows:
1. Definitions.
(a) As used herein, the following terms shall have the following
respective meanings:
"Accounts" shall mean all "accounts," as such term is defined
in the Uniform Commercial Code, now owned or hereafter acquired by the
Borrower, including without limitation (i) all accounts receivable,
other receivables, book debts and other forms of
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obligations now owned or hereafter received or acquired by or belonging
or owing to the Borrower, whether arising out of goods sold or leased
or services rendered by it or from any other transaction (including
without limitation any such obligations which may be characterized as
an account under the Uniform Commercial Code), (ii) all of the
Borrower's rights in, to and under all purchase orders or receipts now
owned or hereafter acquired by it for goods or services, (iii) all of
the Borrower's rights to any goods represented by any of the foregoing
(including without limitation unpaid sellers' rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (iv) all monies due or to become due
to the Borrower under all purchase orders and contracts for the sale or
lease of goods or the performance of services or both by the Borrower
(whether or not yet earned by performance on the part of the Borrower)
now or hereafter in existence, including without limitation the right
to receive the proceeds of said purchase orders and contracts, and (v)
all collateral security and guarantees of any kind, now or hereafter in
existence, given by any Person with respect to any of the foregoing.
"Chattel Paper" shall mean any and all "chattel paper," as
such term is defined in the Uniform Commercial Code, now owned or
hereafter acquired by the Borrower, wherever located.
"Documents" shall mean any and all "documents", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without
limitation each xxxx of lading, dock warrant, dock receipt, warehouse
receipt or order for the delivery of goods, and also any other document
which in the regular course of business or financing is treated as
adequately evidencing that the person in possession of it is entitled
to receive, hold and dispose of the document and the goods it covers.
"General Intangibles" shall mean any and all "general
intangibles," as such term is defined in the Uniform Commercial Code,
now owned or hereafter acquired by the Borrower, including without
limitation all contracts, undertakings, or agreements in or under which
the Borrower may now or hereafter have any right (other than any right
evidenced by Chattel Paper, Documents or Instruments), title or
interest, including without limitation any agreements relating to the
terms of payment or the terms of performance of any Account.
"Instruments" shall mean any and all "instruments", as such
term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without
limitation all certificated securities, all certificates of deposit,
and all notes and other, without limitation, evidences of indebtedness,
other than instruments that constitute, or are a part of a group of
writings that constitute, Chattel Paper.
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"Investment Property" shall mean any and all "investment
property," as such term is defined in the Uniform Commercial Code, now
owned or hereafter acquired by the Borrower, wherever located.
"Lessee" shall mean Dollar Tree Distribution, Inc., a Virginia
corporation, its successors, permitted assigns and permitted
transferees.
"Obligations" shall mean any and all obligations now existing
or hereafter arising under the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and/or any other Operative Agreement.
(b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in the
Credit Agreement or Appendix A to the 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 Lessee, the
various parties thereto from time to time, as Guarantors, the Borrower,
and the Bank.
(c) The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Agreement.
2. Grant of Security Interest.
To secure payment of all the amounts advanced under the Credit
Agreement in connection with the Notes, all the amounts advanced or contributed
under the Trust Agreement in connection with the Certificates and all other
amounts now or hereafter owing to the Bank, the Holder or under any other
Operative Agreement, THE BORROWER HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS,
HYPOTHECATES, MORTGAGES AND SETS OVER TO THE BANK, A FIRST PRIORITY SECURITY
INTEREST IN AND LIEN ON THE TRUST ESTATE, whether now existing or hereafter
acquired INCLUDING WITHOUT LIMITATION THE FOLLOWING:
(a) all right, title and interest of the Borrower in
and to the Operative Agreements now existing or hereafter
acquired by the Borrower (including without limitation all
rights to payment and indemnity rights of the Borrower under
the Participation Agreement) (all of the foregoing in this
paragraph (a) being referred to as the "Rights in Operative
Agreements");
(b) all right, title and interest of the Borrower in
and to all of the Equipment;
(c) all right, title and interest of the Borrower in
and to all of the Fixtures;
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(d) all the estate, right, title, claim or demand
whatsoever of the Borrower, in possession or expectancy, in
and to each Property, Fixture or Equipment or any part
thereof;
(e) all right, title and interest of the Borrower in
and to all substitutes, modifications and replacements of, and
all additions, accessions and improvements to, the Fixtures
and Equipment, subsequently acquired or leased by the Borrower
or constructed, assembled or placed by the Borrower on any
Property, immediately upon such acquisition, lease,
construction, assembling or placement, and in each such case,
without any further conveyance, assignment or other act by the
Borrower;
(f) all right, title and interest of the Borrower in,
to and under books and records relating to or used in
connection with the operation of one (1) or more Properties or
any part thereof; all rights of the Borrower to the payment of
money and all property; and all rights in and to any causes of
action or choses in action now or hereafter existing in favor
of the Borrower and all rights to any recoveries therefrom;
(g) all right, title and interest of the Borrower in
and to all unearned premiums under insurance policies now held
or subsequently obtained by the Lessee relating to one (1) or
more Properties and the Borrower's interest in and to all
proceeds of any insurance policies maintained by or for the
benefit of the Borrower, including without limitation any
right to collect and receive such proceeds; and all awards and
other compensation, including without limitation the interest
payable thereon and any right to collect and receive the same,
made to the present or any subsequent owner of any Property
for the taking by eminent domain, condemnation or otherwise,
of all or any part of any Property or any easement or other
right therein;
(h) all right, title and interest of the Borrower in
and to (i) all consents, licenses, certificates and other
governmental approvals relating to construction, completion,
use or operation of any Property or any part thereof and (ii)
all Plans and Specifications relating to any Property;
(i) all right, title and interest of the Borrower in
and to all Rent and all other rents, payments, purchase
prices, receipts, revenues, issues and profits payable under
the Lease or pursuant to any other lease with respect to any
Property;
(j) all right, title and interest of the Borrower in
and to all Instruments and Documents;
(k) all right, title and interest of the Borrower in
and to all General Intangibles;
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(l) all right, title and interest of the Borrower in
and to all Chattel Paper (including without limitation all
rights under the Lease) and each Ground Lease;
(m) all right, title and interest of the Borrower in
and to all money, cash or cash equivalent and bank accounts;
(n) all right, title and interest of the Borrower in
and to all Accounts;
(o) all right, title and interest of the Borrower in
and to all proceeds of letters of credit issued in favor of
the Borrower in connection with any Property; and
(p) all right, title and interest of the Borrower in
and to all proceeds, both cash and noncash, of any of the
foregoing.
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by the Borrower and described in the foregoing
clauses (a) through (p) are collectively referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto the Bank its successors and assigns for the uses and
purposes set forth, until all of the obligations owing to the Bank under the
Operative Agreements are paid in full; provided, that EXCLUDED from the Trust
Property at all times and in all respects shall be all Excepted Payments.
3. Payment of Obligations.
The Borrower shall pay all Obligations in accordance with the terms of
the Credit Agreement, the Notes, the Trust Agreement, the Certificates and the
other Operative Agreements and perform each term to be performed by it under the
Credit Agreement, the Notes, the Trust Agreement, the Certificates and the other
Operative Agreements.
4. Other Covenants.
At any time and from time to time, upon the written request of the
Bank, and at the expense of the Borrower (with funds provided by the Lessee for
such purpose), the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the Agent
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Security Agreement and of the rights and powers granted by this
Security Agreement.
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5. Default; Remedies.
(a) If a Credit Agreement Event of Default has occurred and is
continuing:
(i) the Bank, in addition to all other remedies
available at law or in equity, shall have the right forthwith
to enter upon any Property (or any other place where any
component of any Property is located at such time) without
charge, and take possession of all or any portion of the Trust
Property, and to re-let the Trust Property and receive the
rents, issues and profits thereof, to make repairs and to
apply said rentals and profits, after payment of all necessary
or proper charges and expenses, on account of the amounts
hereby secured (subject to the Excepted Payments); and
(ii) the Bank, shall, as a matter of right, be
entitled to the appointment of a receiver for the Trust
Property, and the Borrower hereby consents to such appointment
and waives notice of any application therefor.
(b) If a Credit Agreement Event of Default has occurred and is
continuing, the Bank may proceed by an action at law, suit in equity or
other appropriate proceeding, to protect and enforce its rights,
whether for the foreclosure of the Lien of this Security Agreement, or
for the specific performance of any agreement contained herein or for
an injunction against the violation of any of the terms hereof. The
proceeds of any sale of any of the Trust Property shall be applied
pursuant to Section 8.7 of the Participation Agreement. In addition,
the Bank may proceed under Section 11 hereof.
(c) The Borrower hereby waives the benefit of all
appraisement, valuation, stay, extension and redemption laws now or
hereafter in force and all rights of marshalling in the event of any
sale of the Trust Property or any portion thereof or interest therein.
6. Remedies Not Exclusive.
The Bank shall be entitled to enforce payment of the indebtedness and
performance of the Obligations and to exercise all rights and powers under this
Security Agreement or under any of the other Operative Agreements or other
agreements or any laws now or hereafter in force, notwithstanding some or all of
the Obligations may now or hereafter be otherwise secured, whether by deed of
trust, mortgage, security agreement, pledge, Lien, assignment or otherwise.
Neither the acceptance of this Security Agreement nor its enforcement, shall
prejudice or in any manner affect the Bank's right to realize upon or enforce
any other security now or hereafter held by the Bank, it being agreed that the
Bank shall be entitled to enforce this Security Agreement and any other security
now or hereafter held by the Bank in such order and manner as the Bank may
determine in its absolute discretion. No remedy conferred hereunder or under any
other Operative Agreement upon or reserved to the Bank is intended to be
exclusive of any other remedy herein or therein or by law provided or permitted,
but each shall be cumulative and shall be in addition to every other remedy
given hereunder or thereunder or now or hereafter existing
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at law or in equity or by statute. Every power or remedy given by any of the
Operative Agreements to the Bank or to which it may otherwise be entitled, may
be exercised, concurrently or independently, from time to time and as often as
may be deemed expedient by the Bank. In no event shall the Bank, in the exercise
of the remedies provided in this Security Agreement (including without
limitation in connection with the assignment of Rents to the Bank, or the
appointment of a receiver and the entry of such receiver onto all or any part of
the Land), be deemed a "mortgagee in possession" or a "pledgee in possession",
and the Bank shall not in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.
7. Performance by the Bank of the Borrowers Obligations.
If the Borrower fails to perform or comply with any of its agreements
contained herein the Bank, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
agreement. The expenses of the Bank incurred in connection with actions
undertaken as provided in this Section 7, together with interest thereon at a
rate per annum equal to the Overdue Rate, from the date of payment by the Bank
to the date reimbursed by the Borrower, shall be payable by the Borrower (with
funds provided by the Lessee for such purpose) to the Bank on demand and
constitutes part of the Obligations secured hereby.
8. Duty of the Bank.
The Bank's sole duty with respect to the custody, safekeeping and
physical preservation of any Trust Property in its possession, under Section
9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in
the same manner as the Bank deals with similar property for its own account.
Neither the Bank nor any of its respective directors, officers, employees,
shareholders, partners or agents shall be liable for failure to demand, collect
or realize upon any of the Trust Property or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of any Trust Property upon
the request of the Borrower or any other Person or to take any other action
whatsoever with regard to the Trust Property or any part thereof.
9. Powers Coupled with an Interest.
All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the Liens created hereby are released.
10. Execution of Financing Statements.
Pursuant to Section 9-402 of the Uniform Commercial Code, the Borrower
authorizes the Bank at the expense of the Borrower (such amounts to be paid with
funds provided by the Lessee for such purpose) to file financing statements with
respect to the Trust Property under this Security Agreement without the
signature of the Borrower in such form and in such filing offices as the Bank
reasonably determines appropriate to perfect the security interests of the Bank
under
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this Security Agreement. A carbon, photographic or other reproduction of this
Security Agreement shall be sufficient as a financing statement for filing in
any jurisdiction. For purposes of such financing statement, the Borrower shall
be deemed to be the debtor, and the Bank shall be deemed to be the secured
party. The address of the Borrower is 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, Attention: Xxx X. Xxxxx, Vice President, and the address of the Bank is
First Union National Bank, x/x Xxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxx, XX0, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxxxx Xxx
Xxxxxx, Capital Markets Services.
11. Security Agreement Under Uniform Commercial Code.
(a) It is the intention of the parties hereto that this
Security Agreement as it relates to matters of the grant, perfection
and priority of security interests the subject hereof, shall constitute
a security agreement within the meaning of the Uniform Commercial Code
of the States in which the Trust Property is located. If a Credit
Agreement Event of Default shall occur, then in addition to having any
other right or remedy available at law or in equity, the Bank may
proceed under the applicable Uniform Commercial Code and exercise such
rights and remedies as may be provided to a secured party by such
Uniform Commercial Code with respect to all or any portion of the Trust
Property which is personal property (including without limitation
taking possession of and selling such property). If the Bank shall
elect to proceed under the Uniform Commercial Code, then fifteen (15)
days' notice of sale of the personal property shall be deemed
reasonable notice and the reasonable expenses of retaking, holding,
preparing for sale, selling and the like incurred by the Bank shall
include, but not be limited to, attorneys' fees and legal expenses. At
the Bank's request, the Borrower shall assemble such personal property
and make it available to the Bank at a place designated by the Bank
which is reasonably convenient to both parties.
(b) The Borrower, upon request by the Bank from time to time,
shall execute, acknowledge and deliver to the Bank one (1) or more
separate security agreements, in form satisfactory to the Bank,
covering all or any part of the Trust Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any financing statement, affidavit, continuation
statement or certificate or other document as the Bank may request in
order to perfect, preserve, maintain, continue or extend the security
interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to
pay to the Bank (with funds provided by the Lessee for such purpose) on
demand all costs and expenses incurred by the Bank in connection with
the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches
for financing statements the Bank shall reasonably require. The filing
of any financing or continuation statements in the records relating to
personal property or chattels shall not be construed as in any way
impairing the right of the Bank to proceed against any property
encumbered by this Security Agreement.
12. [Intentionally Left Blank].
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13. Notices.
All notices required or permitted to be given under this Security
Agreement shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.
14. Severability.
Any provision of this Security Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
15. Amendment in Writing; No Waivers; Cumulative Remedies.
(a) None of the terms or provisions of this Security Agreement
may be waived, amended, supplemented or otherwise modified except in
accordance with the terms of Section 12.4 of the Participation
Agreement.
(b) No failure to exercise, nor any delay in exercising, on
the part of the Bank, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any
right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Bank of any right or remedy hereunder on any
one (1) occasion shall not be construed as a bar to any right or remedy
which the Bank would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
16. Section Headings.
The section headings used in this Security Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
17. Successors and Assigns.
This Security Agreement shall be binding upon the successors of the
Borrower, and the Borrower shall not assign any of its rights or obligations
hereunder or with respect to any of the Trust Property without the prior written
consent of the Bank. This Security Agreement shall inure to the benefit of the
Bank and its successors and assigns.
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18. The Borrowers Waiver of Rights.
Except as otherwise set forth herein, to the fullest extent permitted
by law, the Borrower waives the benefit of all laws now existing or that may
subsequently be enacted providing for (a) any appraisement before sale of any
portion of the Trust Property, (b) any extension of the time for the enforcement
of the collection of the indebtedness or the creation or extension of a period
of redemption from any sale made in collecting such debt and (c) exemption of
any portion of the Trust Property from attachment, levy or sale under execution
or exemption from civil process. Except as otherwise set forth herein, to the
fullest extent the Borrower may do so, the Borrower agrees that the Borrower
will not at any time insist upon, plead, claim or take the benefit or advantage
of any law now or hereafter in force providing for any appraisement, valuation,
stay, exemption, extension or redemption, or requiring foreclosure of this
Security Agreement before exercising any other remedy granted hereunder and the
Borrower, for the Borrower and its successors and assigns, and for any and all
Persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshalling in the event of
foreclosure of the Liens hereby created.
19. GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 11(a) HEREOF, THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA.
20. Obligations Are Without Recourse.
The provisions of the Participation Agreement relating to limitations
on liability are hereby incorporated by reference herein, Mutatis Mutandis.
21. Partial Release; Full Release.
The Bank may release for such consideration as it may require any
portion of the Trust Property without (as to the remainder of the Trust
Property) in any way impairing or affecting the Lien, security interest and
priority herein provided for the Bank compared to any other Lien holder or
secured party. Further, the Bank shall execute and deliver to the Borrower such
documents and instruments as may be required to release the Lien and security
interest created by this Security Agreement with respect to the Properties as
provided in Section 8.8 of the Participation Agreement or to grant the easements
and permit the other matters provided for in Section 8.5 of the Participation
Agreement.
22. Miscellaneous.
(a) This Security Agreement is one (1) of the documents which
create Liens and security interests that secure payment and performance
of the Obligations. The
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Bank, at its election, may commence or consolidate in a single action
all proceedings to realize upon all such Liens and security interests.
The Borrower hereby waives (i) any objections to the commencement or
continuation of an action to foreclose the Lien of this Security
Agreement or exercise of any other remedies hereunder based on any
action being prosecuted or any judgment entered with respect to the
Obligations or any Liens or security interests that secure payment and
performance of the Obligations and (ii) any objections to the
commencement of, continuation of, or entry of a judgment in any such
other action based on any action or judgment connected to this Security
Agreement. In case of a foreclosure sale, the Trust Property may be
sold, at the Agent's election, in one (1) parcel or in more than one
(1) parcel and the Bank is specifically empowered (without being
required to do so, and in its sole and absolute discretion) to cause
successive sales of portions of the Trust Property to be held.
(b) This Security Agreement may not be amended, waived,
discharged or terminated except in accordance with Section 12.4 of the
Participation Agreement.
(c) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION, VENUE AND ARBITRATION ARE HEREBY
INCORPORATED BY REFERENCE HEREIN, MUTATIS MUTANDIS.
23. Conflicts with Participation Agreement.
Notwithstanding any other provision hereof, in the event of any
conflict between the terms of this Security Agreement and the Participation
Agreement, the terms of the Participation Agreement shall govern.
24. LESSEE AS A PARTY.
LESSEE HAS EXECUTED THIS SECURITY AGREEMENT FOR THE PURPOSE OF
SUBJECTING TO THE SECURITY INTERESTS GRANTED HEREUNDER ALL OF ITS RIGHT, TITLE,
ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY TO SECURE ALL
OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS. ACCORDINGLY,
LESSEE HEREBY GRANTS TO THE BANK A SECURITY INTEREST IN AND TO ALL OF ITS RIGHT,
TITLE, ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY (TO THE EXTENT
LESSEE HAS ANY RIGHT, TITLE OR INTEREST THEREIN AND WITHOUT REGARD TO ANY
LANGUAGE IN SECTION 2 OR THE DEFINITION OF "TRUST PROPERTY' OR ANY DEFINITION OF
ANY ITEM CONSTITUTING THE TRUST PROPERTY WHICH OTHERWISE WOULD LIMIT THE TRUST
PROPERTY TO THE RIGHT, TITLE AND INTEREST OF THE BORROWER THEREIN) TO SECURE ALL
OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS. LESSEE
ACKNOWLEDGES AND AGREES THAT, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE
BANK SHALL HAVE THE RIGHT TO EXERCISE ANY OR ALL OF ITS
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REMEDIES HEREUNDER AS AGAINST ANY SUCH RIGHT, TITLE, ESTATE OR INTEREST OF
LESSEE IN OR TO THE TRUST PROPERTY.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, each of the undersigned have caused the Security
Agreement to be duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
DTSD Realty Trust 1999-1
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
as Lender and Holder
By: /s/ Xxxxxx XxXxxxxxxx
Name: xxxxxx XxXxxxxxxx
Title: Vice President
Accepted and Agreed to:
DOLLAR TREE DISTRIBUTION, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Sr. V.P.
