APPENDIX A
to
Master Agreement, Lease,
Loan Agreement and Construction Agency Agreement
DEFINITIONS AND INTERPRETATION
A. Interpretation. In each Operative Document, unless a clear contrary
intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Operative Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement (including any Operative
Document), document or instrument means such agreement, document or
instrument as amended, supplemented or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the
terms of the other Operative Documents and reference to any promissory
note includes any promissory note which is an extension or renewal
thereof or a substitute or replacement therefor;
(v) reference to any Applicable Law or Requirement of Law
means such Applicable Law or Requirement of Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder and reference to any section or other provision of any
Applicable Law or Requirement of Law means that provision of such
Applicable Law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto;
(vii) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section, paragraph or other
provision of such Operative Document;
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(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term;
(ix) "or" is not exclusive; and
(x) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
B. Accounting Terms. In each Operative Document, unless expressly
otherwise provided, all terms of an accounting character used in the Operative
Documents shall be interpreted, all accounting determinations under the
Operative Documents shall be made, and all financial statements required to be
delivered under the Master Agreement shall be prepared, in accordance with
Generally Accepted Accounting Principles.
C. Conflict in Operative Documents. If there is any conflict between
any Operative Documents, each such Operative Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Master Agreement shall
prevail and control.
D. Legal Representation of the Parties. The Operative Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring any Operative Document to
be construed or interpreted against any party shall not apply to any
construction or interpretation hereof or thereof.
E. Defined Terms. Unless a clear contrary intention appears, terms
defined herein have the respective indicated meanings when used in each
Operative Document.
"A Loan" means the A Percentage of Fundings made pursuant to the Loan
Agreement and the Master Agreement.
"A Note" is defined in Section 2.2 of the Loan Agreement.
"A Percentage" means 85%.
"Address" means with respect to any Person, its address set forth in
Schedule 8.2 to the Master Agreement or such other address as it shall have
identified to the parties to the Master Agreement in writing in the manner
provided for the giving of notices thereunder.
"Adjusted LIBO Rate" means, with respect to each Rent Period for a
LIBOR Advance, the rate obtained by dividing (A) LIBOR for such Rent Period by
(B) a percentage equal to 1 minus the then stated maximum rate (stated as a
decimal) of all reserves requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of
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Eurocurrency liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D).
"Advance" means a LIBOR Advance or a Base Rate Advance.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by", and "under common control with") as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person.
"After-Tax Basis" means (a) with respect to any payment to be received
by an Indemnitee (which, for purposes of this definition, shall include any Tax
Indemnitee), the amount of such payment supplemented by a further payment or
payments so that, after deducting from such payments the amount of all Taxes
(net of any current credits, deductions or other Tax benefits arising from the
payment by the Indemnitee of any amount, including Taxes, for which the payment
to be received is made) imposed currently on the Indemnitee by any Governmental
Authority or taxing authority with respect to such payments, the balance of such
payments shall be equal to the original payment to be received and (b) with
respect to any payment to be made by any Indemnitee, the amount of such payment
supplemented by a further payment or payments so that, after increasing such
payment by the amount of any current credits or other Tax benefits realized by
the Indemnitee under the laws of any Governmental Authority or taxing authority
resulting from the making of such payments, the sum of such payments (net of
such credits or benefits) shall be equal to the original payment to be made;
provided, however, for the purposes of this definition, and for purposes of any
payment to be made to either a Lessee or an Indemnitee on an after-tax basis, it
shall be assumed that (i) federal, state and local taxes are payable at the
highest combined marginal federal and state statutory income tax rate (taking
into account the deductibility of state income taxes for federal income tax
purposes) applicable to corporations from time to time and (ii) such Indemnitee
or such Lessee has sufficient income to utilize any deductions, credits (other
than foreign tax credits, the use of which shall be determined on an actual
basis) and other Tax benefits arising from any payments described in clause (b)
of this definition.
"Agent" means Crestar Bank, a Virginia state bank, in its capacity as
agent under the Master Agreement and the Loan Agreement.
"Alterations" means, with respect to any Leased Property, fixtures,
alterations, improvements, modifications and additions to such Leased Property.
"Applicable Law" means all applicable laws (including Environmental
Laws), rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by, any Governmental Authority, and
applicable judgments, decrees, injunctions, writs, orders or like
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action of any court, arbitrator or other administrative, judicial or
quasi-judicial tribunal or agency of competent jurisdiction (including those
pertaining to health, safety or the environment (including, without limitation,
wetlands) and those pertaining to the construction, use or occupancy of any
Leased Property).
"Applicable Margin" means initially, 0 for Base Rate Advances and 50
basis points LIBOR Advances:
The Applicable Margin shall be adjusted, based upon the following
performance covenants:
Applicable
Funded Applicable Margin- Margin-Base
Tier Debt/EBITDA LIBOR Advances Rate Advances
I Less than or 50 basis points 0 basis points
equal to 0.75:1
II Less than 1.25:1 60 basis points 0 basis points
but greater than or
equal to 0.75:1
III Greater than or 105 basis points 0 basis points
equal to 1.25:1
For purposes of determining the Applicable Margin, the foregoing
performance measures shall be tested quarterly on a rolling four-quarter basis
beginning with the quarter ending December 31, 1999. The Applicable Margin shall
be adjusted based upon, and as of the fifth (5th) Business Day after the due
date of, the financial statements required to be delivered to the Agent under
Section 5.2(b) of the Master Agreement. The Applicable Margin shall be the
Applicable Margin set forth in the Tier in which the performance measures are
met.
"Appraisal" is defined in Section 3.1 of the Master Agreement.
"Appraiser" means an MAI appraiser reasonably satisfactory to the
Agent.
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"Architect" means with respect to any Leased Property the architect
engaged in connection with the construction of the related Building, if any, who
may be an employee of the General Contractor for such Leased Property.
"Architect's Agreement" means, with respect to any Leased Property, the
architectural services agreement, if any, between the Construction Agent (or a
Lessee) and the related Architect.
"Assignment and Assumption" means an assignment and assumption
agreement, substantially in the form of Exhibit F to the Master Agreement.
"Assignment of Lease and Rents" means, with respect to any Leased
Property, the Assignment of Lease and Rents, dated as of the related Closing
Date, from the Lessor to the Agent, substantially in the form of Exhibit B to
the Master Agreement.
"Authority" means a development or similar authority of any state,
county or municipality that is an issuer of Bonds.
"Award" means any award or payment received by or payable to the Lessor
or a Lessee on account of any Condemnation or Event of Taking (less the actual
costs, fees and expenses, including reasonable attorneys' fees, incurred in the
collection thereof, for which the Person incurring the same shall be reimbursed
from such award or payment).
"B Loan" means the B Percentage of Fundings made pursuant to the Loan
Agreement and the Master Agreement.
"B Note" is defined in Section 2.2 of the Loan Agreement.
"B Percentage" means 11.5%.
"Balance Sheet Date" means December 31, 1998.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as amended.
"Base Rate" means (with any change in the Base Rate to be effective as
of the date of change of either of the following rates) the higher of (i) the
rate which the Agent publicly announces from time to time as its prime lending
rate, as in effect from time to time, and (ii) the Federal Funds Rate, as in
effect from time to time, plus one-half of one percent (0.50%) per annum. The
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to customers; the Agent may
make commercial loans or other loans at rates of interest at, above or below the
Agent's prime lend ing rate. The Base Rate is determined daily.
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"Base Rate Advance" means that portion of the Funded Amount bearing
interest at the Base Rate.
"Base Term" means, with respect to any Leased Property, (a) the period
commencing on the related Closing Date and ending on January 13, 2005 or (b)
such shorter period as may result from earlier termination of the Lease as
provided therein.
"Basic Rent" means the rent payable pursuant to Section 3.1 of the
Lease, determined in accordance with the following: each installment of Basic
Rent payable on any Payment Date shall be in an amount equal to the sum of (A)
the aggregate amount of Lender Basic Rent payable on such Payment Date, plus (B)
the aggregate amount of Lessor Basic Rent payable on such Payment Date, in each
case for the Leased Property or Properties that are then subject to the Lease.
"Board" means the Board of Governors of the Federal Reserve System and
any successor thereto or to the functions thereof.
"Board of Directors", with respect to a corporation, means either the
Board of Directors or any duly authorized committee of that Board which pursuant
to the by-laws of such corporation has the same authority as that Board as to
the matter at issue.
"Bonds" means industrial revenue or development bonds issued by a
state, county or municipal authority in connection with any Leased Property.
"Building" means, with respect to any Leased Property, the buildings,
structures and improvements located or to be located on the related Land, along
with all fixtures used or useful in connection with the operation of such Leased
Property, including, without limitation, all furnaces, boilers, compressors,
elevators, fittings, pipings, connectives, conduits, ducts, partitions,
equipment and apparatus of every kind and description now or hereafter affixed
or attached to the Building, equipment, if any, financed by the Lessor and/or
the Lenders and all Alterations (including all restorations, repairs,
replacements and rebuilding of such buildings, improvements and structures)
thereto (but in each case excluding trade fixtures and equipment financed other
than by the Lessor or the Lenders).
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks are required or authorized to be closed for business in Atlanta,
Georgia and, if the applicable Business Day relates to a LIBOR Advance, on which
trading is not carried on by and between banks in the London interbank market.
"Capital Expenditures" means all Capitalized Leases and all
expenditures made by any Obligor which are capitalized or are required to be
capitalized on the consolidated cash flow statement of the Obligors in
accordance with Generally Accepted Accounting Principles.
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"Capitalized Leases" means leases under which any Obligor is the lessee
or obligor, the discounted future rental payment obligations under which are
capitalized or are required to be capitalized on the balance sheet of the lessee
or obligor in accordance with Generally Accepted Accounting Principles.
"Casualty" means an event of damage or casualty relating to all or part
of any Leased Property that does not constitute an Event of Loss.
"Claims" means liabilities, obligations, damages, losses, demands,
penalties, fines, claims, actions, suits, judgments, proceedings, settlements,
utility charges, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Closing Date" means with respect to each parcel of Land, the date on
which (i) such Land is acquired by the Lessor pursuant to a Purchase Agreement
or such Land is leased to the Lessor pursuant to a Ground Lease and (ii) the
initial Funding occurs with respect to such Land under the Master Agreement.
"Code" or "Tax Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" means as to each Funding Party, its obligation to make
Fundings as investments in each Leased Property, or to make Loans to the Lessor,
in an aggregate amount not to exceed at any one time outstanding the amount set
forth for such Funding Party on Schedule 2.2 to the Master Agreement (as it may
be adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Commitment Fee" is defined in Section 2.2(h) of the Master Agreement.
"Commitment Fee Percentage" means 0.125%.
"Commitment Percentage" means as to any Funding Party, at a particular
time, the percentage of the aggregate Commitments in effect at such time
represented by such Funding Party's Commitment, as such percentage is shown for
such Funding Party on Schedule 2.2 to the Master Agreement (as it may be
adjusted from time to time pursuant to Section 6 of the Master Agreement).
"Completion Date" with respect to any Leased Property means the
Business Day on which the conditions specified in Section 3.5 of the Master
Agreement have been satisfied or waived with respect to such Leased Property.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, occupancy or title to any Leased
Property or any part thereof in, by or on account of any actual eminent domain
proceeding or other action by any Governmental Authority or other Person under
the power of eminent domain or any transfer in lieu of or in
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anticipation thereof, which in any case does not constitute an Event of Taking.
A Condemnation shall be deemed to have "occurred" on the earliest of the dates
that use is prevented or occupancy or title is taken.
"Consolidated or consolidated" means, with reference to any term
defined herein, shall mean that term as applied to the accounts of DTS and its
Subsidiaries, consolidated in accordance with Generally Accepted Accounting
Principles.
"Consolidated Current Assets" means, at any time, all assets of DTS and
its Subsidiaries which would, in accordance with Generally Accepted Accounting
Principles, be classified as current assets, but excluding (i) Accounts with
respect to products, goods, and/or services which were delivered or performed by
Obligors more than ninety (90) days prior to such date, and (ii) the assets
described in subparagraphs (a) through (f) of the definition of Consolidated
Tangible Net Worth.
"Consolidated Current Liabilities" means at any time, all liabilities
of DTS and its Subsidiaries (including, without limitation, the Revolving Credit
Loans)which would, in accordance with Generally Accepted Accounting Principles,
be classified as current liabilities.
"Consolidated EBITDA" means with respect to any fiscal period, the
result(determined with respect to the same period and without duplication) of
the following: (a) Consolidated Net Income (or Deficit); plus (b) all
depreciation, amortization and other non-cash deductions included as an expense
of DTS and its Subsidiaries in the determination of Consolidated Net Income (or
Deficit); minus (c) extraordinary gains; plus (d) all taxes included as an
expense of DTS and its Subsidiaries in the determination of Consolidated Net
Income (or Deficit); plus (e) interest included as an expense of DTS and its
Subsidiaries in the determination of Consolidated Net Income (or Deficit).
"Consolidated Net Income (Or Deficit)" means with respect to any fiscal
period, the consolidated net income (or deficit) of DTS and its Subsidiaries,
after deduction of all expenses, taxes, and other proper charges, determined in
accordance with Generally Accepted Accounting Principles.
"Consolidated Operating Cash Flow" means with respect to any fiscal
period, the result (determined with respect to the same period and without
duplication) of (a) Consolidated EBITDA; minus (b) Capital Expenditures made or
incurred during such period plus (c) Rents payable during such period.
"Consolidated Tangible Net Worth" means the difference between
Consolidated Total Assets and Consolidated Total Liabilities, and less the sum
of:
(a) the total book value of all assets of DTS and its Subsidiaries
properly classified as intangible assets under Generally
Accepted Accounting principles, including
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such items as goodwill, the purchase price of acquired assets
in excess of the fair market value thereof, unamortized debt
discount and expense, trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with
respect to the foregoing; plus
(b) all amounts representing any write-up in the book value of any
assets of DTS or its Subsidiaries resulting from a revaluation
thereof subsequent to the Balance Sheet Date; plus
(c) to the extent not already deducted, all reserves; plus
(d) the value of any minority interests in Subsidiaries; plus
(e) the aggregate amount of all loans made by DTS or any
Subsidiary to any officer, employee, or shareholder of DTS or
any Subsidiary; plus
(f) assets located, and notes and receivables due from obligors
domiciled, outside of the United States of America (excluding
inventory in transit).
"Consolidated Total Assets" means at any date, all assets of DTS and
its Subsidiaries that, in accordance with Generally Accepted Accounting
Principles ,should be classified as assets on a Consolidated balance sheet of
DTS and its Subsidiaries.
"Consolidated Total Liabilities" means at any date, all liabilities of
DTS and its Subsidiaries that, in accordance with Generally Accepted Accounting
Principles, should be classified as liabilities on the Consolidated balance
sheet of DTS and its Subsidiaries.
"Construction" means, with respect to any Leased Property, the
construction of the related Building pursuant to the related Plans and
Specifications.
"Construction Agency Agreement" means the Construction Agency
Agreement, dated as of January 13, 2000, between DTD and the Lessor.
"Construction Agency Event of Default" is defined in Section 5.1 of the
Construction Agency Agreement.
"Construction Agent" means DTD in its capacity as construction agent
pursuant to the Construction Agency Agreement.
"Construction Budget" is defined in Section 2.4 of the Construction
Agency Agreement.
"Construction Conditions" means the conditions set forth in Section 3.5
of the Master Agreement.
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"Construction Contract" means, with respect to any Leased Property,
that certain construction contract, if any, between a Lessee or the Construction
Agent and a General Contractor for the Construction of the related Building,
provided that such contract shall be assigned to the Lessor, and such assignment
shall be consented to by such General Contractor, pursuant to an assignment of
such construction contract substantially in the form of the Security Agreement
and Assignment set forth as Exhibit D to the Master Agreement.
"Construction Failure Payment" with respect to any Leased Property
means an amount equal to the sum of (i) 100% of the acquisition cost of the
related Land, plus (ii) 89% of the Construction costs (including development and
transaction costs, but excluding any upfront structuring fees) related to such
Leased Property that have been incurred through the date of payment, plus (iii)
any amounts owed with respect to such Leased Property pursuant to Section 3.3 of
the Construction Agency Agreement or Section 7.2 or 7.5 of the Master Agreement,
plus (iv) the cost of tenant improvements that were not part of the Construction
Budget for such Leased Property.
"Construction Force Majeure Event" means, with respect to any Leased
Property:
(a) an act of God arising after the related Closing Date, or
(b) any change in any state or local law, regulation or other
legal requirement arising after such Closing Date and relating
to the use of the Land or the construction of a building on
the Land, or
(c) strikes, lockouts, labor troubles, unavailability of
materials, riots, insurrections or other causes beyond a
Lessee's control
which prevents the Construction Agent from completing the Construction prior to
the Scheduled Construction Termination Date and which could not have been
avoided or which cannot be remedied by the Construction Agent through the
exercise of all commercially reasonable efforts or the expenditure of funds and,
in the case of (b) above, the existence or potentiality of which was not known
to and could not have been discovered prior to such Closing Date through the
exercise of reasonable due diligence by the Construction Agent.
"Construction Land Interest" means each parcel of Land for which the
Completion Date has not yet occurred.
"Construction Term" means, with respect to any Leased Property, the
period commencing on the related Closing Date and ending on the related
Construction Term Expiration Date, or such shorter period as may result from
earlier termination of the Lease as provided therein.
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"Construction Term Expiration Date" means, with respect to any Leased
Property, the earliest of the following:
(a) the related Completion Date,
(b) the date on which the aggregate Funded Amounts equal the
Commitments, and
(c) the related Scheduled Construction Termination Date.
"Contractual Obligation", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, contract, undertaking, agreement, instrument or other document to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting any of the properties of such Person).
"Credit Agreement" means the Amended and Restated Revolving Credit
Agreement, dated as of September 27, 1996, by and among DTD, DTS, DTM, the
financial institutions party thereto as lenders and The First National Bank of
Boston, as agent.
"Crestar Bank" means Crestar Bank, a Virginia state bank.
"Debt Service Charges" means for any fiscal period, the sum of (i) the
expenses of DTS and its Subsidiaries for such period for interest payable with
respect to Indebtedness (including, without limitation, the obligations under
the Credit Agreement and imputed interest on Capitalized Leases) and all fees
paid on account of or with respect thereto, plus (ii) principal payments made or
required to be made on account of Indebtedness (including, without limitation,
Capitalized Leases, but excluding payments on Intercompany Loans and other
Intercompany Indebtedness) for such period, plus (iii) Distributions made during
such period, plus (iv) Rents paid during such period, in each case determined in
accordance with Generally Accepted Accounting Principles.
"Deed" means, with respect to any Land, a general warranty deed (or, if
the related Title Policy is acceptable to the related Lessee and the Agent, a
special, limited warranty or trustee's deed), dated the applicable Closing Date,
from the applicable Seller to the Lessor, conveying such Land.
"Default" means any of the events specified in Article XII of the
Lease, without giving effect to any requirement for the giving of notice, for
the lapse of time, or both, or for the happening of any other condition, event
or act.
"Distribution" means, with respect to any Person, the declaration or
payment of any dividend on or in respect of any shares of any class of capital
stock, other than (a) dividends payable solely in shares of common stock of such
Person and (b) the payment of cash in lieu
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of the distribution of fractional shares in the event of any stock dividend or
stock split; the purchase, redemption, or other retirement of any shares of any
class of capital stock of such Person, directly or indirectly by such Person
through a Subsidiary of such Person or otherwise, unless such capital stock
shall be redeemed or reacquired through the exchange of such stock with stock of
the same class, and except for the redemption, repurchase, or acquisition of
stock of any Subsidiary by DTS; the return of capital by such Person to its
shareholders as such; or any other distribution (whether of such or other
property) on or in respect of any shares of any class of capital stock of such
Person.
"Dollars" and the sign "$" means lawful money of the United States of
America.
"DTD" means Dollar Tree Distribution, Inc., a Virginia corporation.
"DTM" means Dollar Tree Management, Inc., a Virginia corporation.
"DTS" means Dollar Tree Stores, Inc., a Virginia corporation.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by DTS or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environment" shall have the meaning set forth in 42 U.S.C. ss.9601(8)
as defined on the date of the Master Agreement, and "Environmental" shall mean
pertaining or relating to the Environment.
"Environmental Audit" means, with respect to each parcel of Land, a
Phase I Environmental Assessment, dated no more than 90 days prior to the
related Closing Date, by an environmental services firm satisfactory to the
Funding Parties and DTD.
"Environmental Laws" means and include the Resource Conservation and
Recovery Act of 1976, (RCRA) 42 U.S.C. xx.xx. 6901-6987, as amended by the
Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. xx.xx. 9601-9657, (CERCLA), the
Hazardous Materials Transportation Act of 1975, 49 U.S.C. xx.xx. 1801-1812, the
Toxic Substances Control Act, 15 U.S.C. xx.xx. 2601-2671, the Clean Air Act, 42
U.S.C. xx.xx. 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. xx.xx. 136 et seq., and all similar federal, state and local
environmental laws, ordinances, rules, orders, statutes, decrees, judgments,
injunctions, codes and regulations, and any other federal, state or local laws,
ordinances, rules, codes and regulations, relating to the environment, human
health or natural resources or the regulation or control of or imposing
liability or standards of conduct concerning human health, the environment,
Hazardous Materials or the clean-up or other remediation of any Leased Property,
or any part thereof, as any of the foregoing may have been from time to time
amended, supplemented or supplanted.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time or any successor federal statute, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person which is treated as a single
employer with DTS under Section 414 of the Code.
"ERISA Reportable Event" means a reportable event (other than a
reportable event described in Subsections 4043(b)(2)-(4) and 4043(b)(6)-(9),
which do not require a thirty (30) day notice to the PBGC) with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
"Event of Default" means any event or condition designated as an "Event
of Default" in Article XII of the Lease.
"Event of Loss" is defined in Section 10.1 of the Lease.
"Event of Taking" is defined in Section 10.2 of the Lease.
"Executive Officer" means with respect to any Person, the Chief
Executive Officer, President, Vice Presidents (if elected by the Board of
Directors of such Person), Chief Financial Officer, Treasurer, Secretary and any
Person holding comparable offices or duties (if elected by the Board of
Directors of such Person).
"Fair Market Rental Value" means, with respect to any Leased Property,
the fair market rent as determined by an independent appraiser chosen by the
related Lessee and reasonably acceptable to the Lessor and the Agent (unless an
Event of Default has occurred and is continuing, in which case the appraiser
shall be chosen by the Agent) that would be obtained in an arm's-length lease
between an informed and willing lessee and an informed and willing lessor, in
either case under no compulsion to lease, and neither of which is related to or
affiliated with the Lessor or any Lessee for the lease of such Leased Property
on the terms (other than the amount of Basic Rent) set forth, or referred to, in
the Lease. Such fair market rent shall be calculated as the value for the use of
such Leased Property to be leased in place at the Land, assuming, in the
determination of such fair market rental value, that such Leased Property is in
the condition and repair required to be maintained by the terms of the Lease
(unless such fair market rental value is being determined for the purposes of
Section 13.1 of the Lease and except as otherwise specifically provided in the
Lease, in which case this assumption shall not be made).
"Fair Market Sales Value" means, with respect to any Leased Property or
any portion thereof, the fair market sales value as determined by an independent
appraiser chosen by the related Lessee and reasonably acceptable to the Lessor
and the Agent (unless an Event of Default has occurred and is continuing, in
which case the appraiser shall be chosen by the
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Agent), that would be obtained in an arm's-length transaction between an
informed and willing buyer (other than a lessee currently in possession) and an
informed and willing seller, under no compulsion, respectively, to buy or sell
and neither of which is related to the Lessor or any Lessee, for the purchase of
such Leased Property. Such fair market sales value shall be calculated as the
value for such Leased Property, assuming, in the determination of such fair
market sales value, that such Leased Property is in the condition and repair
required to be maintained by the terms of the Lease (unless such fair market
sales value is being determined for purposes of Section 13.1 of the Lease and
except as otherwise specifically provided in the Lease or the Master Agreement,
in which case this assumption shall not be made).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Final Rent Payment Date" with respect to any Leased Property is
defined in Section 13.1(e) of the Lease.
"Funded Amount" means, as to the Lessor, the Lessor's Invested Amounts,
and, as to each Lender, the outstanding principal amount of such Lender's Loans.
"Funded Debt" means at any time, an amount equal to the sum of the then
outstanding balances of (a) the Revolving Credit Loans, plus (b) Capitalized
Leases, plus (c)other Indebtedness for borrowed money or other extensions of
credit.
"Funding" means any funding by the Funding Parties pursuant to Section
2.2 of the Master Agreement.
"Funding Date" means each Closing Date and each other date on which a
Funding occurs under Section 2 of the Master Agreement.
"Funding Parties" means the Lessor and the Lenders, collectively.
"Funding Party Balance" means, with respect to any Leased Property, (i)
for the Lessor as of any date of determination, an amount equal to the sum of
the outstanding related Lessor's Invested Amount, all accrued and unpaid Yield
on such outstanding related Lessor's Invested Amount, all unpaid related fees
owing to the Lessor under the Operative Documents, and all other related amounts
owing to the Lessor by the Lessees under the Operative Documents, and (ii) for
any Lender as of any date of determination, an amount equal to the sum of the
outstanding related Loans of such Lender, all accrued and unpaid interest
thereon,
14
all unpaid related fees owing to such Lender under the Operative Documents, and
all other related amounts owing to such Lender by the Lessees under the
Operative Documents.
"Funding Request" is defined in Section 2.2 of the Master Agreement.
"Funding Termination Date" means the earlier of (i) July 13, 2001 and
(ii) the termination of the Commitments pursuant to Section 5.2 of the Loan
Agreement.
"General Partner" means Atlantic Financial Managers, Inc., a Texas
corporation.
"General Permitted Liens" means Liens permitted by Section 5.11 of the
Master Agreement.
"Generally Accepted Accounting Principles" means principles that are
(i)consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (ii) consistently applied with past financial statements of DTS adopting the
same principles; provided that in each case referred to in this definition of
"Generally Accepted Accounting Principles" a certified public accountant would,
insofar as the use of such accounting principles impertinent, be in a position
to deliver an unqualified opinion (other than qualification regarding changes in
Generally Accepted Accounting Principles) as to financial statements in which
such principles have been properly applied. In the event of a change in
Generally Accepted Accounting Principles, the Funding Parties and the Obligors
will thereafter revise any covenants set forth in Sections 5.22 through 5.28 of
the Master Agreement affected thereby in order to make such covenants as now
applied consistent with Generally Accepted Accounting Principles then in effect.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, decrees,
licenses, exemptions, publications, filings, notices to and declarations of or
with, or required by, any Governmental Authority, or required by any Applicable
Law and shall include, without limitation, all citings, environmental and
operating permits and licenses that are required for the use, occupancy, zoning
and operation of any Leased Property.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Ground Lease" means, with respect to any Land, the ground lease
between the related Ground Lessor and the Lessor pursuant to which a leasehold
estate is conveyed in the Land to the Lessor.
"Ground Lessor" means, as to any Land, the ground lessor of such Land.
15
"Guaranteed Pension Plan" means any employee pension benefit plan
within the meaning of Section 3(2) of ERISA maintained or contributed to by DTS
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
"Guarantor" means Dollar Tree Stores, Inc., a Virginia corporation.
"Guaranty Agreement" means the Guaranty Agreement, dated as of January
13, 2000, issued by DTS and DTD.
"Hazardous Material" or "Hazardous Substance" means any substance,
waste or material which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, including
petroleum, crude oil or any fraction thereof, petroleum derivatives, by products
and other hydrocarbons, or which is or becomes regulated under any Environmental
Law by any Governmental Authority, including any agency, department, commission,
board or instrumentality of the United States, any jurisdiction in which a
Leased Property is located or any political subdivision thereof and also
including, without limitation, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls ("PCBs") and radon gas.
"IDB Documentation" means the Bonds, each IDB Lease and all other
agreements, documents, contracts and instruments entered into in connection with
any Bonds or IDB Property.
"IDB Lease" means a lease between the Lessor and an Authority with
respect to a Leased Property.
"IDB Property" means each Leased Property that is the subject of Bonds.
"Indebtedness" means all obligations, contingent and otherwise, that in
accordance with Generally Accepted Accounting Principles should be classified
upon the consolidated balance sheet of DTS and its Subsidiaries as liabilities,
or to which reference should be made by footnotes thereto, including in any
event and whether or not so classified: (a) all obligations for borrowed money
or other extensions of credit whether or not secured or unsecured, absolute or
contingent, including, without limitation, unmatured reimbursement obligations
with respect to letters of credit or guarantees issued for the account of or on
behalf of DTS and its Subsidiaries, and all obligations representing the
deferred purchase price of property, other than accounts payable arising in the
ordinary course of business, (b) all obligations evidenced by bonds, notes,
debentures or other similar instruments; (c) all liabilities secured by any
mortgage, pledge, security interest, lien, charge, or other encumbrance existing
on property owned or acquired subject thereto, whether or not the liability
secured thereby shall have been assumed; (d) all guarantees, endorsements(other
than endorsements in the ordinary course of business of negotiable instruments
or documents for deposit or collection) and other contingent obligations whether
direct or indirect in respect of indebtedness of others or
16
otherwise, including any obligations with respect to puts, swaps, and other
similar undertakings, any obligation to supply funds to or in any manner to
invest in, directly or indirectly, the debtor, to purchase indebtedness, or to
assure the owner of indebtedness against loss, through an agreement to purchase
goods, supplies, or services for the purpose of enabling the debtor to make
payment of the indebtedness held by such owner or otherwise, and the obligations
to reimburse the issuer in respect of any letters of credit; (e) that portion of
all obligations arising under Capital Leases that is required to be capitalized
on the consolidated balance sheet of DTS and its Subsidiaries; and (f) all
redeemable preferred stock of DTS or its Subsidiaries valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends.
"Indemnitee" means Crestar Bank, in its individual capacity and in its
capacity as Agent, and each Lender (but only, with respect to any Leased
Property, from and after the Completion Date for such Leased Property), and the
Lessor, and their respective Affiliates, successors, permitted assigns,
permitted transferees, employees, officers, directors and agents; provided,
however, that in no event shall any Lessee be an Indemnitee.
"Indemnitee Group" means the respective Affiliates, employees,
officers, directors and agents of the Agent (in its individual capacity), each
Lender or the Lessor, as applicable; provided, however, that in no event shall
any Lessee be a member of the Indemnitee Group.
"Initial Closing Date" means the Closing Date for the first Leased
Property acquired by the Lessor.
"Insufficiency" means, with respect to any Plan, the amount, if any, by
which the present value of the vested benefits under such Plan exceeds the fair
market value of the assets of such Plan allocable to such benefits.
"Intercompany Loans" means all amounts due or to become due from any
Obligor or any other Affiliates for loans, and/or other advances by any Obligor
of funds or property to another Obligor or other Affiliates.
"Investments" means all expenditures made and all liabilities and
commitments incurred (contingently or otherwise) for the purchase or acquisition
of capital stock, partnership interests, or equity interests or securities, or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as described
under indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there
17
shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
"Joinder Agreement" means an agreement substantially in the form of
Exhibit E to the Master Agreement pursuant to which a Subsidiary of DTS shall
become a Lessee.
"Land" means the land described in the related Lease Supplement.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, treaties or decrees of any Governmental Authority, or of any
court or similar entity established by any thereof.
"Lease" means the Master Lease Agreement, dated as of January 13, 2000
together with each Lease Supplement thereto, among the Lessees and the Lessor.
"Lease Balance" means, with respect to all of the Leased Properties, as
of any date of determination, an amount equal to the aggregate sum of the
outstanding Funded Amounts of all Funding Parties, all accrued and unpaid
interest on the Loans, all accrued and unpaid Yield on the Lessor's Invested
Amounts, all unpaid fees owing to the Funding Parties under the Operative
Documents, including all other amounts owing to the Funding Parties by the
Lessees under the Operative Documents.
"Lease Supplement" means a supplement to the Lease substantially in the
form of Exhibit A thereto.
"Lease Term" means (a) the Base Term, as it may be renewed pursuant to
Section 14.9 of the Lease or (b) such shorter period as may result from earlier
termination of the Lease as provided therein.
"Lease Termination Date" means the last day of the Lease Term.
"Leased Property" means Land and the related Building(s). For purposes
of the Lease, "Leased Property" means the Land identified in a Lease Supplement
and the Buildings related thereto, unless the context provides otherwise.
"Leased Property" shall not include any inventory of any Lessee.
"Leased Property Balance" means, with respect to any Leased Property,
as of any date of determination, an amount equal to the aggregate sum of the
outstanding related Funded Amounts of all Funding Parties, all accrued and
unpaid interest on the related Loans, all accrued and unpaid Yield on the
related Lessor Invested Amounts, all related unpaid fees owing to the Funding
Parties under the Operative Documents, and all other amounts owing to
18
the Funding Parties by any Lessee under the Operative Documents with respect to
such Leased Property.
"Lender Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of interest accrued on the Loans pursuant to Section 2.4 of the
Loan Agreement during such Rent Period.
"Lenders" means such financial institutions as are, or who may
hereafter become, parties to the Loan Agreement as lenders to the Lessor.
"Lending Office" for each Lender means the office such Lender
designates in writing from time to time to DTD and the Agent.
"Lessee" is defined in the preamble to the Master Agreement. The
"related" Lessee with respect to any Leased Property means the Lessee that is
party to the Lease Supplement for such Leased Property.
"Lessor" is defined in the preamble to the Master Agreement.
"Lessor Basic Rent" means, for any Rent Period under the Lease, the
aggregate amount of Yield accrued and unpaid on the Lessor's Invested Amounts
pursuant to Section 2.3(a) of the Master Agreement during such Rent Period.
"Lessor Liens" means Liens on or against any Leased Property, the
Lease, any other Operative Document or any payment of Rent (a) which result from
any act or omission of, or any Claim against, the Lessor unrelated to the
Transaction or from Lessor's failure to perform as required under the Operative
Documents or (b) which result from any Tax owed by the Lessor, except any Tax
for which a Lessee or DTS is obligated to indemnify (including, without
limitation, in the foregoing exception, any assessments with respect to any
Leased Property noted on the related Title Policy or assessed in connection with
any construction or development by a Lessee or the Construction Agent).
"Lessor Rate" is defined in the Lessor Side Letter.
"Lessor Side Letter" means the letter agreement, dated as of January
13, 2000, between DTS and the Lessor.
"Lessor's Invested Amount" means the amounts funded by the Lessor
pursuant to Section 2 of the Master Agreement that are not proceeds of Loans by
a Lender, as such amount may be increased during the related Construction Term
pursuant to Section 2.3(c) of the Master Agreement.
"LIBOR" means, for any Rent Period, with respect to LIBOR Advances the
offered rate for deposits in U.S. Dollars, for a period comparable to the Rent
Period and in an amount
19
comparable to such Advances, appearing on the Telerate Screen Page 3750 as of
11:00 A.M. (London, England time) on the day that is two London Business Days
prior to the first day of the Rent Period. If two or more of such rates appear
on the Telerate Screen Page 3750, the rate for that Rent Period shall be the
arithmetic mean of such rates. If the foregoing rate is unavailable from the
Telerate Screen for any reason, then such rate shall be determined by the Agent
from the Reuters Screen LIBO Page or, if such rate is also unavailable on such
service, then on any other interest rate reporting service of recognized
standing designated in writing by the Agent to DTD and the Funding Parties; in
any such case rounded, if necessary, to the next higher 1/100 of 1.0%, if the
rate is not such a multiple.
"LIBOR Advance" means that portion of the Funded Amount bearing
interest at a rate based on the Adjusted LIBO Rate.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of indebtedness, whether by
consensual agreement or by operation of statute or other law, or by any
agreement, contingent or otherwise, to provide any of the foregoing.
"Loan" shall have the meaning specified in Section 2.1 of the Loan
Agreement.
"Loan Agreement" means the Loan Agreement, dated as of January 13,
2000, among the Lessor, the Agent and the Lenders.
"Loan Documents" means the Loan Agreement, the Notes, the Assignments
of Lease and Rents, the Mortgages and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Loan Event of Default" means any of the events specified in Section
5.1 of the Loan Agreement, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, event or act has
been satisfied.
"Loan Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become a Loan Event of
Default.
"Loss Proceeds" is defined in Section 10.6 of the Lease.
"Margin Regulations" means Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Margin Stock" means "margin stock" as defined in Regulation T, U or X.
20
"Master Agreement" means the Master Agreement, dated as of January 13,
2000, among DTS, the Lessees, the Lessor, the Agent and the Lenders.
"Material Adverse Effect" means with respect to any event or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding), (i) a materially
adverse effect on the ability of Guarantor or any Lessee to perform its
obligations under any Operative Document, (ii) a materially adverse effect on
the financial condition, operations, business, prospects or assets of DTS and
its subsidiaries, taken as a whole, (iii) a materially adverse effect on the
value or useful life of any Leased Property, or the legality, validity or
enforceability of any of the Operative Documents or (iv) a materially adverse
effect on the status or priority of the Agent's or any Funding Party's interest
in any Leased Property.
"Monthly Payment Date" means the last Business Day of each calendar
month.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, with respect to any Leased Property, that certain
mortgage, deed of trust or security deed, dated as of the related Closing Date,
by the Lessor to the Agent, in the form of Exhibit D-1 or D-2 attached to the
Master Agreement, with such modifications as are satisfactory to the Lessor and
the Agent in conformity with Applicable Law to assure customary remedies in
favor of the Agent in the jurisdiction where the Leased Property is located.
"Multiemployer Plan" means any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by DTS or any ERISA
Affiliate.
"Notes" means the A Note and the B Note issued by the Lessor under the
Loan Agreement, and any and all notes issued in replacement or exchange therefor
in accordance with the provisions thereof.
"Obligations" means all indebtedness (whether principal, interest, fees
or otherwise), obligations and liabilities of the Guarantor and each Lessee to
the Funding Parties (including without limitation all extensions, renewals,
modifications, rearrangements, restructures, replacements and refinancings
thereof, whether or not the same involve modifications to interest rates or
other payment terms of such indebtedness, obligations and liabilities), whether
arising under any of the Operative Documents or otherwise, and whether now
existing or hereafter created, absolute or contingent, direct or indirect, joint
or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, or
acquired by Funding Parties outright, conditionally or as collateral security
from another, including but not limited to the obligation of the Guarantor and
each Lessee to repay future advances by the Funding Parties, whether or not made
pursuant to commitment and whether or not presently contemplated by the
Guarantor or any Lessee and the Funding Parties under the Operative Documents.
21
"Obligors" means the Guarantor and the Lessees, collectively.
"Officer's Certificate" of a Person means a certificate signed by the
Chairman of the Board or the President or any Executive Vice President or any
Senior Vice President or any other Vice President or the Treasurer or any
Assistant Treasurer or the Controller or any Assistant Controller or the
Secretary of such Person.
"Operative Documents" means the Master Agreement, the Purchase
Agreements, the Deeds, the Lease, the Security Agreement and Assignment, the
Notes, the Loan Agreement, the Guaranty Agreement, the Assignments of Lease and
Rents, the Mortgages, the Ground Leases, the Construction Agency Agreement, the
Joinder Agreements and the other documents delivered in connection with the
transactions contemplated by the Master Agreement.
"Overdue Rate" means the lesser of (a) the highest interest rate
permitted by Applicable Law and (b) an interest rate per annum (calculated on
the basis of a 365-day (or 366-day, if appropriate) year equal to 2.0% above the
Base Rate in effect from time to time or, in the case of Yield, 2% above the
Lessor Rate.
"Partial Purchase Option" is defined in Section 14.1(b) of the Lease.
"Partnership Agreement" means the Agreement of Limited Partnership of
AFG, dated as of February 28, 1996, among the General Partner and the persons
listed on Schedule A thereto as limited partners.
"Payment Date" means the last day of each Rent Period (and if such Rent
Period is longer than three months, the day that is 90 days after the first day
of such Rent Period) or, if such day is not a Business Day, the next Business
Day.
"Payment Date Notice" is defined in Section 2.3(d) of the Master
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor thereto.
"Permitted Intercompany Distributions" means distributions among DTS
and its subsidiaries.
"Permitted Investments" means: (a) direct obligations of the United
States of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any Lender or by any
bank or trust company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided profits of at
least $500,000,000, maturing not more than 90 days from the date of acquisition
thereof; (c) commercial paper rated A-1 or better or P-1 by Standard & Poor's
Corporation or Xxxxx'x Investors Services, Inc.,
22
respectively, maturing not more than six months from the date of acquisition
thereof; (d) commercial paper of any Lender (or any Affiliate thereof located in
the United States of America) that is rated A-1 or better or P-1 by Standard and
Poor's Corporation or Xxxxx'x Investors Services, Inc., respectively, maturing
not more than six months from the date of acquisition thereof; (e) repurchase
agreements entered into with any Lender or with any bank or trust company
satisfying the conditions of clause (b) hereof that is secured by any obligation
of the type described in clauses (a) through (d) of this definition; and (f)
money market funds acceptable to the Required Lenders.
"Permitted Liens" means the following with respect to any Leased
Property: (a) the respective rights and interest of the related Lessee, the
Lessor, the Agent and any Lender, as provided in the Operative Documents, (b)
Liens for Taxes either not yet due or being contested in good faith and by
appropriate proceedings, so long as enforcement thereof is stayed pending such
proceedings, (c) materialmen's, mechanics', workers', repairmen's, employees' or
other like Liens arising after the related Closing Date in the ordinary course
of business for amounts either not yet due or being contested in good faith and
by appropriate proceedings, so long as enforcement thereof is stayed pending
such proceedings, (d) Liens arising after such Closing Date out of judgments or
awards with respect to which at the time an appeal or proceeding for review is
being prosecuted in good faith, so long as the enforcement thereof has been
stayed pending such appeal or review, (e) easements, rights of way,
reservations, servitudes and rights of others against the Land which do not
materially and adversely affect the value or the utility of such Leased
Property, (f) other Liens incidental to the conduct of the related Lessee's
business which were not incurred in connection with the borrowing of money or
the obtaining of advances or credit and which do not in the aggregate materially
detract from the value of such Leased Property or materially impair the use
thereof, (g) assignments and subleases expressly permitted by the Operative
Documents and (h) Liens in favor of municipalities agreed to by the related
Lessee that do not affect the value or utility of the related Leased Property.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
nonincorporated organization or government or any agency or political
subdivision thereof.
"Plans and Specifications" means with respect to any Building the final
plans and specifications for such Building prepared by the Architect, and, if
applicable, referred to by the Appraiser in the Appraisal, as such Plans and
Specifications may be hereafter amended, supplemented or otherwise modified from
time to time.
"Potential Event of Default" means any event, condition or failure
which, with notice or lapse of time or both, would become an Event of Default.
"Purchase Agreement" means with respect to any Land, the purchase
agreement with the Seller for the conveyance of such Land to the Lessor.
23
"Purchase Option" is defined in Section 14.1(a) of the Lease.
"Quarterly Payment Date" means the last Business Day of each March,
June, September and December of each year.
"Real Estate" means all real property at any time owned or leased (as
lessee or sublessee) by DTS or any of its Subsidiaries.
"Recourse Deficiency Amount" means, as of any date of determination
thereof, the sum of (i) the aggregate principal amount of the A Loans then
outstanding, plus (ii) all accrued and unpaid interest on the A Loans.
"Release" means the release, deposit, disposal or leak of any Hazardous
Material into or upon or under any land or water or air, or otherwise into the
environment, including, without limitation, by means of burial, disposal,
discharge, emission, injection, spillage, leakage, seepage, leaching, dumping,
pumping, pouring, escaping, emptying, placement and the like.
"Release Date" means, with respect to any Leased Property, the earlier
of (i) the date that the Lease Balance has been paid in full, and (ii) the date
on which the Agent gives notice to the Lessor that the Lenders release any and
all interest they may have in such Leased Property, and all proceeds thereof,
and any rights to direct, consent or deny consent to any action by the Lessor
with respect to such Leased Property.
"Remarketing Option" is defined in Section 14.6 of the Lease.
"Rent" means Basic Rent and Supplemental Rent, collectively.
"Rents" means all consideration paid in the ordinary course of business
by DTS and its Subsidiaries to any Person for the use or occupation of property
under any operating lease to which DTS or any of its Subsidiaries is the lessee
or obligor, determined in accordance with Generally Accepted Accounting
Principles.
"Rent Period" means (i) in the case of Base Rate Advances, means the
period from, and including, a Quarterly Payment Date to, but excluding, the next
succeeding Quarterly Payment Date; and (ii) with respect to any LIBOR Advance:
(1) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
LIBOR Advance and ending one, two, three or six months
thereafter, as selected by DTD in its Funding Notice or
Payment Date Notice, as the case may be, given with respect
thereto; and
(2) thereafter, each period commencing on the last day of the next
preceding Rent Period applicable to such LIBOR Advance and
ending one, two, three or six
24
months thereafter, as selected by DTD by irrevocable notice to
the Agent in its related Payment Date Notice;
provided, however that:
(a) The initial Rent Period for any Funding shall
commence on the Funding Date of such Funding and each Rent
Period occurring thereafter in respect of such Funding shall
commence on the day on which the next preceding Rent Period
expires;
(b) If any Rent Period would otherwise expire on a
day which is not a Business Day, such Rent Period shall expire
on the next succeeding Business Day, provided that if any Rent
Period in respect of LIBOR Advances would otherwise expire on
a day that is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such
Rent Period shall expire on the next preceding Business Day;
(c) Any Rent Period in respect of LIBOR Advances
which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Rent Period shall, subject to paragraph (d) below, expire on
the last Business Day of such calendar month;
(d) No Rent Period shall extend beyond the Lease
Termination Date;
(e) At any one time, there shall be no more than six
(6) Rent Periods;
"Report" is defined in Section 7.6 of the Master Agreement.
"Required Funding Parties" means, at any time, Funding Parties holding
an aggregate outstanding principal amount of Funded Amounts equal to at least
66-2/3% of the aggregate outstanding principal amount of all Funded Amounts.
"Required Lenders" means, at any time, Lenders holding an aggregate
outstanding principal amount of Loans equal to at least 66-2/3% of the aggregate
outstanding principal amount of all Loans.
"Requirement of Law" for any Person means the articles or certificate
of incorporation and bylaws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
25
"Reuters Screen" means, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuters Monitor Money
Rates Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Loans" means loans made to DTD pursuant to the Credit
Agreement.
"Scheduled Construction Termination Date" means with respect to any
Building the earlier of (i) two years after the Closing Date for the related
Land and (ii) eighteen months after the commencement of the Construction of such
Building.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Agreement and Assignment" means, with respect to any Leased
Property, the Security Agreement and Assignment (Construction Contract,
Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans,
Specifications and Drawings) from the Construction Agent to the Lessor,
substantially in the form of Exhibit C to the Master Agreement.
"Solvent" means, with respect to any Person as of any date, that on
such date(i) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become matured, (iii)
such Person is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at anytime, it is intended that such liabilities will be computed at
the amount which, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
"Stock Option Plan" means any Stock Option Plans, Stock Incentive
Plans, Employee Stock Purchase Plans, and any other plans of a similar nature of
any of the Obligors in effect now or in the future.
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"Subsidiary" means any corporation, association, partnership, trust, or
other business entity of which the designated parent shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes or controlling interests) of the outstanding Voting
Interests.
"Supplemental Rent" means any and all amounts, liabilities and
obligations other than Basic Rent which any Lessee assumes or agrees or is
otherwise obligated to pay under the Lease or any other Operative Document
(whether or not designated as Supplemental Rent) to the Lessor, the Agent, any
Lender or any other party, including, without limitation, amounts under Article
XVI of the Lease, and indemnities and damages for breach of any covenants,
representations, warranties or agreements, and all overdue or late payment
charges in respect of any Funded Amount.
"Tax Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Tax Indemnitee" means the Lessor, the Agent, any Lender and their
respective Affiliates, successors, permitted assigns, permitted transferees,
employees, officers, directors and agents thereof, provided, however, that in no
event shall any Lessee be a Tax Indemnitee.
"Taxes" means any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" means, when used in connection with any designated page and
LIBOR, the display page so designated on the Dow Xxxxx Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Title Insurance Company" means the company that has or will issue the
title policies with respect to a Leased Property, which company shall be
reasonably acceptable to the Funding Parties.
"Title Policy" is defined in Section 3.1 of the Master Agreement.
"Transaction" means all the transactions and activities referred to in
or contemplated
by the Operative Documents.
"UCC" means the Uniform Commercial Code of Georgia, as in effect from
time to time.
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"Voting Interests" means stock or similar ownership interests, of any
class or classes (however designated), the holders of which are at the time
entitled, as such holders, (a) to vote for the election of a majority of the
directors (or persons performing similar functions) of the corporation,
association, partnership, trust or other business entity involved, or (b) to
control, manage, or conduct the business of the corporation, partnership,
association, trust or other business entity involved.
"Withholding Taxes" is defined in Section 7.5(f) of the Master
Agreement.
"Yield" is defined in Section 2.3 of the Master Agreement.
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