EXHIBIT 10.8
UNLIMITED GUARANTY
GUARANTY, dated as of September 27, 1996 by DOLLAR TREE MANAGEMENT,
INC., a Virginia Corporation (the "Guarantor"), in favor of The First National
Bank of Boston, NationsBank, N.A., Signet Bank, Crestar Bank, First Union
National Bank of Virginia, AmSouth Bank of Alabama and Union Bank of California,
N.A., (together with any other institutions who may hereafter become parties to
a certain Amended and Restated Revolving Credit Agreement (the "Credit
Agreement") of even date herewith, collectively, the "Banks"), and The First
National Bank of Boston, as Agent for the Banks, or any successor Agent to the
Banks as provided for in the Credit Agreement. In consideration of the Banks'
giving, in their discretion, time, credit or banking facilities or
accommodations to Dollar Tree Distribution, Inc., a Virginia corporation having
its chief executive office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (together
with its successors, the "Customer"), the Guarantor agrees as follows:
1. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby
guarantees to the Banks and to the Agent the full and
punctual payment when due (whether at maturity, by
acceleration or otherwise), and the performance, of all
liabilities, agreements and other obligations of the
Customer to the Banks and to Agent, or any of them, whether
direct or indirect, absolute or contingent, due or to become
due, secured or unsecured, now existing or hereafter arising
or acquired (whether by way of discount, letter of credit,
lease, loan, overdraft or otherwise) (the "Obligations").
This Guaranty is an absolute, unconditional and continuing
guaranty of the full and punctual payment and performance of
the Obligations and not of their collectibility only and is
in no way conditioned upon any requirement that the Banks or
the Agent first attempt to collect any of the Obligations
from the Customer or resort to any security or other means
of obtaining their payment. Should the Customer default in
the payment or performance of any of the Obligations, the
obligations of the Guarantor hereunder shall become
immediately due and payable to the Banks and the Agent,
without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the
Guarantor hereunder may be required by the Banks or the
Agent on any number of occasions.
2. GUARANTOR'S AGREEMENT TO PAY. The Guarantor further agrees,
as the principal obligor and not as a guarantor only, to pay
to the Banks and the Agent, or any of them, on demand, all
costs and expenses (including court costs and legal
expenses) incurred or expended by the Banks, or any of them,
in connection with the Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts
recoverable under this Guaranty from the time such amounts
1
become due until payment, at the rate of interest set forth
in Section 4.11 of the Credit Agreement.
3. UNLIMITED GUARANTY. The liability of the Guarantor
hereunder shall be unlimited.
4. WAIVERS BY GUARANTOR; BANKS/AGENT FREEDOM TO ACT. The
Guarantor agrees that the Obligations will be paid and
performed strictly in accordance with their respective terms
regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or
the rights of the Banks or the Agent with respect thereto.
The Guarantor waives presentment, demand, protest, notice of
acceptance, notice of Obligations incurred and all other
notices of any kind, except notices required pursuant to the
Credit Agreement, all defenses which may be available by
virtue of any valuation, stay, moratorium law or other
similar law now or hereafter in effect, any right to require
the marshalling of assets of the Customer, and all
suretyship defenses generally. Without limiting the
generality of the foregoing, the Guarantor agrees to the
provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and
agrees that the obligations of the Guarantor hereunder shall
not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of the Banks or the
Agent to assert any claim or demand or to enforce any right
or remedy against the Customer; (ii) any extensions or
renewals of any Obligation; (iii) any rescissions, waivers,
amendments or modifications of any of the terms or
provisions of any agreement evidencing, securing or
otherwise executed in connection with any Obligation; (iv)
the substitution or release of any entity primarily or
secondarily liable for any Obligation; (v) the adequacy of
any rights the Banks or the Agent may have against any
collateral or other means of obtaining repayment of the
Obligations; (vi) the impairment of any collateral securing
the Obligations, including without limitation the failure to
perfect or preserve any rights the Banks or the Agent might
have in such collateral or the substitution, exchange,
surrender, release, loss or destruction of any such
collateral; or (vii) any other act or omission which might
in any manner or to any extent vary the risk of the
Guarantor or otherwise operate as a release or discharge of
the Guarantor, all of which may be done without notice to
the Guarantor.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST CUSTOMER. If for
any reason the Customer has no legal existence or is under
no legal obligation to discharge any of the Obligations, or
if any of the Obligations have become irrecoverable from the
Customer by operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to
the same extent as if the Guarantor at all times had been
2
the principal obligor on all such Obligations. In the event
that acceleration of the time for payment of the Obligations
is stayed upon the insolvency, bankruptcy or reorganization
of the Customer, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of any
agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and
payable by the Guarantor.
6. SUBROGATION; SUBORDINATION. The Guarantor shall not
exercise any rights against the Customer arising as a result
of payment by the Guarantor hereunder, by way of subrogation
or otherwise, and will not prove any claim in competition
with the Agent, the Banks or their affiliates in respect of
any payment hereunder in bankruptcy or insolvency
proceedings of any nature; the Guarantor will not claim any
set-off or counterclaim against the Customer in respect of
any liability of the Guarantor to the Customer; and the
Guarantor waives any benefit of and any right to participate
in any collateral which may be held by the Agent, the Banks
or any such affiliate. The payment of any amounts due with
respect to any indebtedness of the Customer now or hereafter
held by the Guarantor is hereby subordinated to the prior
payment in full of the Obligations, provided that so long as
no default in the payment or performance of the Obligations
has occurred and is continuing, or no demand for payment of
any of the Obligations has been made that remains
unsatisfied, the Customer may make, and the Guarantor may
demand and accept, any scheduled payments of principal of
and interest on such subordinated indebtedness in the
amounts, at the rates and on the dates specified in such
instruments, securities or other writings as shall evidence
such subordinated indebtedness. The Guarantor agrees that
after the occurrence of any default in the payment or
performance of the Obligations, the Guarantor will not
demand, xxx for or otherwise attempt to collect any such
indebtedness of the Customer to the Guarantor until the
Obligations shall have been paid in full. If, not
withstanding the foregoing sentence, the Guarantor shall
collect, enforce or receive any amounts in respect of such
indebtedness, such amounts shall be collected, enforced and
received by the Guarantor as trustee for the Banks and the
Agent and be paid over to the Agent on account of the
Obligations without affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
7. SECURITY; SET-OFF. The Guarantor grants to the Banks and
the Agent, as security for the full and punctual payment and
performance of the Guarantor's obligations hereunder, a
continuing lien on and security interest in all securities
or other property belonging to the Guarantor now or
hereafter held by the Banks and the Agent and in ail
deposits (general or special, time or demand, provisional or
final) and other sums credited by or due from the Banks and
3
the Agent to the Guarantor or subject to withdrawal by the
Guarantor; and regardless of the adequacy of any collateral
or other means of obtaining repayment of the Obligations,
the Banks and the Agent are hereby authorized at any time
and from time to time, without notice to the Guarantor (any
such notice being expressly waived by the Guarantor) and to
the fullest extent permitted by law, to set off and apply
such deposits and other sums against the obligations of the
Guarantor under this Guaranty, whether or not the Banks or
the Agent shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured.
8. FURTHER ASSURANCES. The Guarantor agrees to do all such
things and execute all such documents, including financing
statements, as the Banks and the Agent may consider
necessary or desirable to give full effect to this Guaranty
and to perfect and preserve the rights and powers of the
Banks and the Agent hereunder.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in
full force and effect until the Banks are given written
notice of the Guarantor's intention to discontinue this
Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the
Obligations. No such notice shall be effective unless
delivered in accordance with Section 19 of the Credit
Agreement. No such notice shall affect any rights of the
Agent or the Banks or of any affiliate hereunder including,
without limitation, the rights set forth in Sections 4 and
6, with respect to Obligations incurred prior to the receipt
of such notice or Obligations incurred pursuant to any
contract or commitment in existence prior to such receipt,
and all checks, drafts, notes, instruments (negotiable or
otherwise) and writings made by or for the account of the
Customer and drawn on the Banks or any of its agents
purporting to be dated on or before the date of receipt of
such notice, although presented to and paid or accepted by
the Banks after that date, shall form part of the
Obligations. This Guaranty shall continue to be effective
or be reinstated, notwithstanding any such notice, if at any
time any payment made or value received with respect to an
Obligation is rescinded or must otherwise be returned by the
Agent or the Banks upon the insolvency, bankruptcy or
reorganization of the Customer, or otherwise, all as though
such payment had not been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
the Guarantor, its successors and assigns, and shall inure
to the benefit of and be enforceable by the Agent and the
Banks and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
sentence, the Banks and the Agent may assign or otherwise
transfer any agreement or any note held by it evidencing,
securing or otherwise executed in connection with the
4
Obligations, or sell participations in any interest therein,
to any other person or entity, and such other person or
entity shall thereupon become vested, to the extent set
forth in the agreement evidencing such assignment, transfer
or participation, with all the rights in respect thereof
granted to the Banks and the Agent herein.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by
the Guarantor therefrom shall be effective unless the same
shall be in writing and signed by the Banks and the Agent.
No failure on the part of the Banks or the Agent to
exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other
right.
12. NOTICES. All notices and other communications called for
hereunder shall be made in writing and, unless otherwise
specifically provided herein, shall be delivered in
accordance with Section 19 of the Credit Agreement.
13. SUPPLEMENTAL GUARANTY. This Guaranty supplements the
Guarantor's Guaranty dated January 11, 1996 (the "January
Guaranty"). In the event there are any inconsistencies
between this Guaranty and the January Guaranty, the terms
and conditions of this Guaranty shall govern.
14. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty is
intended to take effect as a sealed instrument and shall be
governed by, and construed in accordance with, the laws of
The Commonwealth of Massachusetts. The Guarantor agrees
that any suit for the enforcement of this Guaranty shall be
brought exclusively in the courts of The Commonwealth of
Virginia or any Federal Court sitting therein, except that
suit may be brought in other jurisdictions to the extent
necessary to enforce the Banks' rights with respect to
Collateral (as defined in the Credit Agreement) located
within that jurisdiction, and consents to the exclusive
jurisdiction of such court and to service of process in any
such suit being made upon the Guarantor by mail at the
address specified in Section 19 of the Credit Agreement upon
receipt thereof. The Guarantor hereby waives any objection
that it may now or hereafter have to the venue of any such
suit or any such court or that such suit was brought in an
inconvenient court.
15. MISCELLANEOUS. This Guaranty constitutes the entire
agreement of the Guarantor with respect to the matters set
forth herein. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in
addition to any other guaranty of the Obligations. The
5
invalidity or unenforceability of any one or more sections
of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are
for the ease of reference only and shall not affect the
meaning of the relevant provisions. The meanings of all
defined terms used in this Guaranty shall be equally
applicable to the singular and plural forms of the terms
defined.
16. JURY WAIVER. THE BANKS AND THE AGENT (BY THEIR ACCEPTANCE
HEREOF) AND THE GUARANTOR AGREE THAT NONE OF THEM, INCLUDING
ANY ASSIGNEE OR SUCCESSOR SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON, OR ARISING OUT OF, THIS GUARANTY, ANY
RELATED INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG ANY OF THEM. NEITHER THE
BANKS, THE AGENT, NOR THE GUARANTOR SHALL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS
OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE BANKS,
THE AGENT, AND THE GUARANTOR, AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NEITHER THE BANKS, THE AGENT, NOR
THE GUARANTOR HAS AGREED WITH OR REPRESENTED TO THE OTHER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the Guarantor has executed and delivered
this Guaranty, or caused this Guaranty to be executed and deliv
ered by its duly authorized officer, as of the date appearing on
page one.
WITNESS: GUARANTOR: DOLLAR TREE MANAGEMENT, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ H. Xxx Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx Name: H. Xxx Xxxxxxx
Address: 000 Xxxxxx Xxxxx Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
6
