PARTICIPATION AGREEMENT
Dated as of June 2, 1999
among
DOLLAR TREE DISTRIBUTION, INC.,
as the Construction Agent and as the Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the DTSD Realty Trust 1999-1,
and
FIRST UNION NATIONAL BANK,
as the Lender and the Holder
TABLE OF CONTENTS
Page
SECTION 1. THE LOANS........................................................ 1
SECTION 2. HOLDER ADVANCES.................................................. 1
SECTION 3. SUMMARY OF TRANSACTIONS.......................................... 2
3.1 Operative Agreements................................................ 2
3.2 Property Purchase................................................... 2
3.3 Construction of Improvements; Commencement of Basic Rent............ 2
SECTION 4. THE CLOSINGS..................................................... 3
4.1 Initial Closing Date................................................ 3
4.2 Initial Closing Date; Property Closing Dates; Acquisition Advances;
Construction Advances............................................... 3
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT;
REPORTING REQUIREMENTS ON COMPLETION DATE; THE
LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.............. 3
5.1 General............................................................. 3
5.2 Procedures for Funding.............................................. 4
5.3 Conditions Precedent for the Lessor and the Bank Relating to the
Initial Closing Date and the Advance of Funds for the Acquisition
of a Property....................................................... 5
5.4 Conditions Precedent for the Lessor and the Bank Relating to the
Advance of funds after the Acquisition Advance...................... 9
5.5 Additional Reporting and Delivery Requirements on Completion Date
and on Construction Period Termination Date......................... 10
5.6 The Construction Agent Delivery of Construction Budget
Modifications....................................................... 11
5.7 Restrictions on Liens............................................... 11
5.8 Payments............................................................ 11
5.9 Joinder Agreement Requirements...................................... 11
5.10 Maintenance of the Lessee as a Wholly-Owned Entity................. 12
5.11 Unilateral Right to Increase the Holder Commitments and the Lender
Commitments........................................................ 12
SECTION 6. REPRESENTATIONS AND WARRANTIES................................... 12
6.1 Representations and Warranties of the Borrower...................... 12
6.2 Representations and Warranties of Each Credit Party................. 13
SECTION 6B. GUARANTY........................................................ 16
6B.1 Guaranty of Payment and Performance................................ 16
6B.2 Obligations Unconditional.......................................... 16
6B3. Modifications...................................................... 17
6B.4 Waiver of Rights................................................... 18
6B.5 Reinstatement...................................................... 18
6B.6 Remedies........................................................... 19
6B.7 Limitation of Guaranty............................................. 19
SECTION 7. PAYMENT OF CERTAIN EXPENSES...................................... 19
7.1 Transaction Expenses................................................ 19
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7.2 Brokers' Fees....................................................... 20
7.3 Certain Fees and Expenses........................................... 20
SECTION 8. OTHER COVENANTS AND AGREEMENTS................................... 21
8.1 Cooperation with the Construction Agent or the Lessee............... 21
8.2 Covenants of the Owner Trustee and the Bank......................... 21
8.3 Credit party Covenants, Consent and Acknowledgment.................. 22
8.4 Allocation of Certain Payments...................................... 24
8.5 Grant of Easements, etc............................................. 25
8.6 Appointment by the Bank and the Owner Trustee....................... 25
8.7 Collection and Allocation of Payments and Other Amounts............. 25
8.8 Release of Properties, etc.......................................... 26
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT............................. 27
9.1 The Construction Agent's and the Lessee's Credit Agreement Rights... 27
9.2 The Construction Agent's and the Lessee's Trust Agreement Rights.... 27
SECTION 10. TRANSFER OF INTEREST............................................ 28
10.1 Restrictions on Transfer........................................... 28
10.2 Effect of Transfer................................................. 28
SECTION 11. INDEMNIFICATION................................................. 28
11.1 General indemnity.................................................. 28
11.2 General Tax Indemnity.............................................. 29
11.3 Increased Costs, Illegality, etc................................... 32
11.4 Funding/Contribution Indemnity..................................... 34
11.5 Additional Provisions Regarding Indemnification.................... 34
SECTION 12. MISCELLANEOUS................................................... 35
12.1 Survival of Agreements............................................. 35
12.2 Notices............................................................ 35
12.3 Counterparts....................................................... 37
12.4 Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters.... 37
12.5 Headings, etc...................................................... 37
12.6 Parties in Interest................................................ 37
12.7 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
VENUE; ARBITRATION................................................. 37
12.8 Severability....................................................... 39
12.9 Liability Limited.................................................. 39
12.10 Rights of the Credit Parties...................................... 40
12.11 Further Assurnaces................................................ 41
12.12 Calculations under Operative Agreements........................... 41
12.13 [Intentionally Left Blank]........................................ 41
12.14 Financial Reporting/Tax Characterization.......................... 41
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EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
B - Form of Outside Counsel Opinion for the Lessee - Section 5.3(j)
C - Form of Officer's Certificate - Section 5.3(w)
D - Form of Secretary's Certificate - Section 5.3(x)
E - Form of Officer's Certificate - Section 5.3(z)
F - Form of Secretary's Certificate - Section 5.3(aa)
G - Form of Outside Counsel Opinion for the Owner Trustee - Section 5.3(bb)
H - Form of Outside Counsel Opinion for the Lessee - Section 5.3(cc)
I - Form of Officer's Certificate - Section 5.5
J - Form of Joinder Agreement - Section 5.9(a)
K - Description of Material Litigation - Section 6.2(d)
L - State of Incorporation/Formation and Principal Place of Business of Each
Guarantor - Section 6.2(i)
M - Form of Officer's Compliance Certificate - Section 8.3(k)
Appendix A - Rules of Usage and Definitions
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of June 2, 1999 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Agreement") is by and among DOLLAR TREE DISTRIBUTION, INC., a Virginia,
corporation (the "Lessee" or the "Construction Agent"); the various parties
hereto from time to time as guarantors (subject to the definitions of Guarantors
in Appendix A hereto, individually a "Guarantor" and collectively, the
"Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (in its individual capacity, the "Trust Company"),
except as expressly stated herein, but solely as the Owner Trustee under the
DTSD Realty Trust 1999-1 (the "Owner Trustee", the "Borrower" or the "Lessor");
and FIRST UNION NATIONAL BANK, a national banking association, as lender and
holder (together with its successors and assigns, "Bank"). Capitalized terms
used but not otherwise defined in this Agreement shall have the meanings set
forth in Appendix A hereto.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
SECTION 1. THE LOANS.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, the Bank
has agreed to make Loans to the Lessor from time to time in an aggregate
principal amount of up to the aggregate amount of the Commitments in order for
the Lessor to acquire the Properties and certain Improvements, to develop and
construct certain Improvements in accordance with the Agency Agreement and the
terms and provisions hereof and for the other purposes described herein, and in
consideration of the receipt of proceeds of the Loans, the Lessor will issue the
Notes. The Loans shall be made and the Notes shall be issued pursuant to the
Credit Agreement. Pursuant to Section 5 of this Agreement and Section 2 of the
Credit Agreement, the Loans will be made to the Lessor from time to time at the
request of the Construction Agent in consideration for the Construction Agent
agreeing for the benefit of the Lessor, pursuant to the Agency Agreement, to
acquire the Properties, to acquire the Equipment, to construct certain
Improvements and to cause the Lessee to lease the Properties, each in accordance
with the Agency Agreement and the other Operative Agreements. The Loans and the
obligations of the Lessor under the Credit Agreement shall be secured by the
Collateral.
SECTION 2. HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, on each
date Advances are requested to be made in accordance with Section 5 hereof, the
Bank shall make a Holder Advance to the Lessor with respect to the DTSD Realty
Trust 1999-1 in an amount in immediately available funds such that
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the aggregate of all Holder Advances on such date shall be three percent (3%) of
the amount of the Requested Funds on such date; provided, that the Bank shall
not be obligated for any Holder Advance in excess of the Available Holder
Commitment. No prepayment or any other payment with respect to any Advance shall
be permitted such that the Holder Advance with respect to such Advance is less
than three percent (3%) of the outstanding amount of such Advance, except in
connection with termination or expiration of the Term or in connection with the
exercise of remedies relating to the occurrence of a Lease Event of Default.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1 Operative Agreements.
On the date hereof, each of the respective parties hereto and thereto
shall execute and deliver this Agreement, the Lease, each applicable Ground
Lease, the Agency Agreement, the Credit Agreement, the Notes, the Trust
Agreement, the Certificates, the Security Agreement, each applicable Mortgage
Instrument and such other documents, instruments, certificates and opinions of
counsel as agreed to by the parties hereto.
3.2 Property Purchase.
On each Property Closing Date and subject to the terms and conditions
of this Agreement (a) the Bank will make a Holder Advance in accordance with
Sections 2 and 5 of this Agreement and the terms and provisions of the Trust
Agreement, (b) the Bank will make Loans in accordance with Sections 1 and 5 of
this Agreement and the terms and provisions of the Credit Agreement, (c) the
Lessor will purchase and acquire good and marketable title to or ground lease
pursuant to a Ground Lease, the applicable Property, each to be within an
Approved State, identified by the Construction Agent, in each case pursuant to a
Deed, Xxxx of Sale or Ground Lease, as the case may be, and grant the Bank a
lien on such Property by execution of the required Security Documents and (d)
the Bank, the Lessee and the Lessor shall execute and deliver a Lease Supplement
relating to such Property.
3.3 Construction of Improvements; Commencement of Basic Rent.
Construction Advances will be made with respect to particular
Improvements to be constructed and with respect to ongoing Work regarding the
Equipment and construction of particular Improvements, in each case, pursuant to
the terms and conditions of this Agreement and the Agency Agreement. The
Construction Agent will act as a construction agent on behalf of the Lessor
respecting the Work regarding the Equipment, the construction of such
Improvements and the expenditures of the Construction Advances related to the
foregoing. The Construction Agent shall promptly notify the Lessor upon
Completion of the Improvements and the Lessee shall commence to pay Basic Rent
as of the Rent Commencement Date.
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SECTION 4. THE CLOSINGS.
4.1 Initial Closing Date.
All documents and instruments required to be delivered on the Initial
Closing Date shall be delivered at the offices of Xxxxx & Xxx Xxxxx, PLLC,
Charlotte, North Carolina, or at such other location as may be determined by the
Lessor, the Bank and the Lessee.
4.2 Initial Closing Date; Property Closing Dates; Acquisition
Advances; Construction Advances.
The Construction Agent shall deliver to the Bank a requisition
(together with invoices for, or other reasonably satisfactory evidence of, any
Transaction Expenses and other fees, expenses and disbursements referred to in
Section 7.1 that are to be paid with the applicable Advance, a "Requisition"),
in the form attached hereto as Exhibit A or in such other form as is
satisfactory to the Bank, in its reasonable discretion, in connection with (a)
the Transaction Expenses and other fees, expenses and disbursements payable,
pursuant to Section 7.1, by the Lessor and (b) each Acquisition Advance pursuant
to Section 5.3 and (c) each Construction Advance pursuant to Section 5.4.
Notwithstanding the preceding sentence, the parties hereto agree that no
Requisition shall be required for the Lenders and the Holders to make Advances
pursuant to or in connection with Sections 7.1 and 11.5.
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT;
REPORTING REQUIREMENTS ON COMPLETION DATE;
THE LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.
5.1 General.
(a) To the extent funds have been advanced by the Bank to the
Lessor as Loans and as Holder Advances, the Lessor will use such funds
from time to time in accordance with the terms and conditions of this
Agreement and the other Operative Agreements (i) at the direction of
the Construction Agent to acquire the Properties in accordance with the
terms of this Agreement, the Agency Agreement and the other Operative
Agreements, (ii) to make Advances to the Construction Agent to permit
the acquisition, testing, engineering, installation, development,
construction, modification, design, and renovation, as applicable, of
the Properties (or components thereof) in accordance with the terms of
the Agency Agreement and the other Operative Agreements, and (iii) to
pay Transaction Expenses, fees, expenses and other disbursements
payable by the Lessor under Section 7.1.
(b) In lieu of the payment of interest on the Loans and Holder
Yield on the Holder Advances on any Scheduled Interest Payment Date
with respect to any Property during the period prior to the Rent
Commencement Date with respect to such Property, (i) each Loan shall
automatically be increased by the amount of interest accrued and unpaid
on such Loan for such period (except to the extent that at any time
such increase
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would cause such Loan to exceed the Available Commitment), and (ii)
each Holder Advance shall automatically be increased by the amount of
Holder Yield accrued and unpaid on such Holder Advance for such period
(except to the extent that at any time such increase would cause the
Holder Advance to exceed the Available Holder Commitment). Such
increases in a Loan and a Holder Advance shall occur without any
disbursement of funds by any Person.
5.2 Procedures for Funding.
(a) The Construction Agent shall designate the date for
Advances hereunder in accordance with the terms and provisions hereof;
provided, however, it is understood and agreed that no more than two
(2) Advances (excluding any conversion and/or continuation of any Loans
or Holder Advances) may be requested during any calendar month. Not
less than (i) three (3) Business Days prior to the Initial Closing Date
and (ii) three (3) Business Days prior to the date on which any
Acquisition Advance or Construction Advance is to be made, the
Construction Agent shall deliver to the Bank, (A) with respect to the
Initial Closing Date and each Acquisition Advance, a Requisition as
described in Section 4.2 hereof (including without limitation a legal
description of the Land, if any, a schedule of the Improvements, if
any, and a schedule of the Equipment, if any, acquired or to be
acquired on such date, and a schedule of the Work, if any, to be
performed, each of the foregoing in a form reasonably acceptable to the
Bank) and (B) with respect to each Construction Advance, a Requisition
identifying (among other things) the Property to which such
Construction Advance relates.
(b) Each Requisition shall: (i) be irrevocable, (ii) request
funds in an amount that is not in excess of the total aggregate of the
Available Commitments plus the Available Holder Commitments at such
time, and (iii) request that the Bank make Holder Advances and Loans to
the Lessor for the payment of Transaction Expenses, Property
Acquisition Costs (in the case of an Acquisition Advance) or other
Property Costs (in the case of a Construction Advance) that have
previously been incurred or are to be incurred on the date of such
Advance to the extent such were not subject to a prior Requisition, in
each case as specified in the Requisition.
(c) Subject to the satisfaction of the conditions precedent
set forth in Sections 5.3 or 5.4, as applicable, on each Property
Closing Date or the date on which the Construction Advance is to be
made, as applicable, (i) the Bank shall make Loans to the Lessor in an
aggregate amount equal to ninety-seven percent (97%) of the Requested
Funds specified in any Requisition, up to an aggregate principal amount
equal to the aggregate of the Available Commitments, (ii) the Bank
shall make a Holder Advance based on its Holder Commitment in an amount
such that the aggregate of all Holder Advances at such time shall be
three percent (3%) of the balance of the Requested Funds specified in
such Requisition, up to the aggregate advanced amount equal to the
Available Holder Commitments; and (iii) the total amount of such Loans
and Holder Advances made on such date shall (x) be used by the Lessor
to pay Property Costs including Transaction Expenses within three (3)
Business Days of the receipt by the Lessor of such
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Advance or (y) be advanced by the Lessor on the date of such Advance to
the Construction Agent or the Lessee to pay Property Costs, as
applicable. Notwithstanding that the Operative Agreements state that
Advances shall be directed to the Lessor, each Advance shall in fact be
directed to the Construction Agent (for the benefit of the Lessor) and
applied by the Construction Agent (for the benefit of the Lessor)
pursuant to the requirements imposed on the Lessor under the Operative
Agreements.
(d) With respect to an Advance obtained by the Lessor to pay
for Property Costs and/or Transaction Expenses or other costs payable
under Section 7.1 hereof and not expended by the Lessor for such
purpose on the date of such Advance, such amounts shall be held by the
Lessor (or the Bank on behalf of the Lessor) until the applicable
closing date or, if such closing date does not occur within three (3)
Business Days of the date of the Lessor's receipt of such Advance,
shall be applied regarding the applicable Advance to repay the Loans
and the Holder Advances and, subject to the terms hereof, and of the
Credit Agreement and the Trust Agreement, shall remain available for
future Advances. Any such amounts held by the Lessor (or the Bank on
behalf of the Lessor) shall be subject to the lien of the Security
Agreement.
(e) All Operative Agreements which are to be delivered to the
Lessor shall be delivered to the Bank, on behalf of the Lessor, and
such items (except for Notes, Certificates, Bills of Sale, the Ground
Leases and chattel paper originals, with respect to which in each case
there shall be only one original) shall be delivered with originals
sufficient for the Lessor and the Bank. All other items which are to be
delivered to the Lessor shall be delivered to the Bank, on behalf of
the Lessor, and such other items shall be held by the Bank. To the
extent any such other items are requested in writing from time to time
by the Lessor, the Bank shall provide a copy of such item.
(f) Notwithstanding the completion of any closing under this
Agreement pursuant to Sections 5.3 or 5.4, each condition precedent in
connection with any such closing may be subsequently enforced by the
Bank (unless such has been expressly waived in writing by the Bank).
5.3 Conditions Precedent for the Lessor and the Bank Relating to
the Initial Closing Date and the Advance of Funds for the
Acquisition of a Property.
The obligations (i) on the Initial Closing Date of the Lessor and the
Bank to enter into the transactions contemplated by this Agreement, including
without limitation the obligation to execute and deliver the applicable
Operative Agreements to which each is a party on the Initial Closing Date, (ii)
on the Initial Closing Date of the Bank to make Holder Advances and Loans in
order to pay Transaction Expenses, fees, expenses and other disbursements
payable by the Lessor under Section 7.1 of this Agreement and (iii) on a
Property Closing Date for the purpose of providing funds to the Lessor necessary
to pay the Transaction Expenses, fees, expenses and other disbursements payable
by the Lessor under Section 7.1 of this Agreement and to acquire or ground lease
a Property (an "Acquisition Advance"), in each case (with regard to the
foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or
waiver of the following conditions
5
precedent on or prior to the Initial Closing Date or the applicable Property
Closing Date, as the case may be (to the extent such conditions precedent
require the delivery of any agreement, certificate, instrument, memorandum,
legal or other opinion, appraisal, commitment, title insurance commitment, lien
report or any other document of any kind or type, such shall be in form and
substance satisfactory to the Bank, in its reasonable discretion;
notwithstanding the foregoing, the obligations of each party shall not be
subject to any conditions contained in this Section 5.3 which are required to be
performed by such party):
(a) the correctness of the representations and warranties of
the parties to this Agreement contained herein, in each of the other
Operative Agreements and each certificate delivered pursuant to any
Operative Agreement (including without limitation the Incorporated
Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) The Bank shall have received a fully executed counterpart
copy of the Requisition, appropriately completed;
(d) [Reserved];
(e) the Construction Agent shall have delivered to the Bank a
good standing certificate for the Construction Agent in the state where
each such Property is located, the Deed with respect to the Land and
existing Improvements (if any), a copy of the Ground Lease (if any),
and a copy of the Xxxx of Sale with respect to the Equipment (if any),
respecting such of the foregoing as are being acquired or ground leased
on each such date with the proceeds of the Loans and Holder Advances or
which have been previously acquired or ground leased with the proceeds
of the Loans and Holder Advances;
(f) there shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements and
no Default or Event of Default under any of the Operative Agreements
will have occurred after giving effect to the Advance requested by each
such Requisition;
(g) the Construction Agent shall have delivered to the Bank
title insurance commitments to issue policies respecting each such
Property, with such endorsements as the Bank deems necessary, in favor
of the Lessor and the Bank from a title insurance company acceptable to
the Bank, but only with such title exceptions thereto as are acceptable
to the Bank;
(h) the Construction Agent shall have delivered to the Bank an
environmental site assessment respecting each such Property prepared by
an independent recognized professional acceptable to the Bank and
evidencing no pre-existing environmental condition with respect to
which there is more than a remote risk of loss;
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(i) the Construction Agent shall have delivered to the Bank a
survey (with a flood hazard certification) respecting each such
Property prepared by (i) an independent recognized professional
acceptable to the Bank and (ii) in a manner and including such
information as is required by the Bank;
(j) unless such an opinion has previously been delivered with
respect to a particular state, the Construction Agent shall have caused
to be delivered to the Bank a legal opinion in the form attached hereto
as Exhibit B or in such other form as is reasonably acceptable to the
Bank, prepared by counsel acceptable to the Bank;
(k) the Construction Agent shall have caused to be delivered
to the Bank a Mortgage Instrument (in such form as is acceptable to the
Bank), Lessor Financing Statements and Lender Financing Statements
respecting each such Property, all fully executed and in recordable
form;
(l) the Lessee shall have delivered to the Bank with respect
to each such Property a Lease Supplement and a memorandum (or short
form lease) regarding the Lease and such Lease Supplement in the form
attached to the Lease as Exhibit B or in such other form as is
acceptable to the Bank and suitable for recording;
(m) with respect to each Acquisition Advance, the sum of the
Available Commitment plus the Available Holder Commitment (after
deducting the Unfunded Amount, if any, and after giving effect to the
Acquisition Advance) will be sufficient to pay all amounts payable
therefrom;
(n) if any such Property is subject to a Ground Lease, the
Construction Agent shall have caused a lease memorandum (or short form
lease) to be delivered to the Bank for such Ground Lease and, if
requested by the Bank, a landlord waiver and a mortgagee waiver (in
each case, in such form as is acceptable to the Bank);
(o) counsel (acceptable to the Bank) for the ground lessor of
each such Property subject to a Ground Lease shall have issued to the
Lessor and the Bank its opinion;
(p) the Construction Agent shall have delivered to the Bank a
preliminary Construction Budget for each such Property, if applicable;
(q) the Construction Agent shall have provided evidence to the
Bank of insurance with respect to each such Property as provided in the
Lease;
(r) the Construction Agent shall have caused an Appraisal
regarding each such Property to be provided to the Bank from an
appraiser satisfactory to the Bank;
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(s) the Construction Agent shall cause (i) Uniform Commercial
Code lien searches, tax lien searches and judgment lien searches
regarding the Lessee and each Credit Party to be conducted (and copies
thereof to be delivered to the Bank) in such jurisdictions as
determined by the Bank by a nationally recognized search company
acceptable to the Bank and (ii) the liens referenced in such lien
searches which are objectionable to the Bank to be either removed or
otherwise handled in a manner satisfactory to the Bank;
(t) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the
Operative Agreements and/or documents related thereto shall have been
paid or provisions for such payment shall have been made to the
satisfaction of the Bank;
(u) each of the Operative Agreements to be entered into on
such date shall have been duly authorized, executed and delivered by
the parties thereto, and shall be in full force and effect, and the
Bank shall have received a fully executed copy of each of the Operative
Agreements;
(v) since the date of the most recent audited financial
statements (as delivered pursuant to the requirements of the Lessee
Credit Agreement) of the Lessee, there shall not have occurred any
event, condition or state of facts which shall have or could reasonably
be expected to have a Material Adverse Effect, other than as
specifically contemplated by the Operative Agreements;
(w) as of the Initial Closing Date only, the Bank shall have
received an Officer's Certificate, dated as of the Initial Closing
Date, of the Lessee in the form attached hereto as Exhibit C or in such
other form as is acceptable to the Bank;
(x) as of the Initial Closing Date only, the Bank shall have
received (i) a certificate of the Secretary or an Assistant Secretary
of each Credit Party, dated as of the Initial Closing Date, in the form
attached hereto as Exhibit D or in such other form as is acceptable to
the Bank and (ii) a good standing certificate (or local equivalent)
from the respective states where such Credit Party is incorporated and
where the principal place of business of such Credit Party is located;
(y) as of the Initial Closing Date only, there shall not have
occurred any material adverse change in the consolidated assets,
liabilities, operations, business or condition (financial or otherwise)
of the Credit Parties (on a consolidated basis) from that set forth in
the most recent audited consolidated financial statements of the Credit
Parties which have been provided to the Bank;
(z) as of the Initial Closing Date only, the Bank shall have
received an Officer's Certificate of the Lessor dated as of the Initial
Closing Date in the form attached hereto as Exhibit E or in such other
form as is acceptable to the Bank;
8
(aa) as of the Initial Closing Date only, the Bank shall have
received (i) a certificate of the Secretary, an Assistant Secretary,
Trust Officer or Vice President of the Trust Company in the form
attached hereto as Exhibit F or in such other form as is acceptable to
the Bank and (ii) a good standing certificate from the Office of the
Comptroller of the Currency;
(bb) as of the Initial Closing Date only, counsel for the
Lessor acceptable to the Bank shall have issued to the Lessee and the
Bank its opinion in the form attached hereto as Exhibit G or in such
other form as is reasonably acceptable to the Bank; and
(cc) as of the Initial Closing Date only, the Construction
Agent shall have caused to be delivered to the Bank a legal opinion in
the form attached hereto as Exhibit H or in such other form as is
acceptable to the Bank from counsel acceptable to the Bank;
5.4 Conditions Precedent for the Lessor and the Bank Relating to
the Advance of Funds after the Acquisition Advance.
The obligations of the Bank to make Holder Advances and Loans in
connection with all requests for Advances subsequent to the acquisition of a
Property (and to pay the Transaction Expenses, fees, expenses and other
disbursements payable by the Lessor under Section 7.1 of this Agreement in
connection therewith) are subject to the satisfaction or waiver of the following
conditions precedent (to the extent such conditions precedent require the
delivery of any agreement, certificate, instrument, memorandum, legal or other
opinion, appraisal, commitment, title insurance commitment, lien report or any
other document of any kind or type, such shall be in form and substance
satisfactory to the Bank, in its reasonable discretion; notwithstanding the
foregoing, the obligations of each party shall not be subject to any conditions
contained in this Section 5.4 which are required to be performed by such party):
(a) the correctness on such date of the representations and
warranties of the parties to this Agreement contained herein, in each
of the other Operative Agreements and in each certificate delivered
pursuant to any Operative Agreement (including without limitation the
Incorporated Representations and Warranties);
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) the Bank shall have received a fully executed counterpart
of the Requisition, appropriately completed;
(d) based upon the applicable Construction Budget which shall
satisfy the requirements of this Agreement, the Available Commitments
and the Available Holder Commitment (after deducting the Unfunded
Amount) will be sufficient to complete the Improvements;
9
(e) there shall not have occurred and be continuing any
Default or Event of Default under any of the Operative Agreements and
no Default or Event of Default under any of the Operative Agreements
will have occurred after giving effect to the Construction Advance
requested by the applicable Requisition;
(f) the title insurance policy delivered in connection with
the requirements of Section 5.3(g) shall provide for (or shall be
endorsed to provide for) insurance in an amount at least equal to the
maximum total Property Cost indicated by the Construction Budget
referred to in subparagraph (d) above and there shall be no title
change or exception objectionable to the Bank; and
(g) the Construction Agent shall have delivered to the Bank
copies of the Plans and Specifications for the applicable Improvements;
(h) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the
Operative Agreements shall have been paid or provisions for such
payment shall have been made to the satisfaction of the Bank;
(i) [reserved];
(j) in the opinion of the Bank and its counsel, the
transactions contemplated by the Operative Agreements do not and will
not subject the Lessor or the Bank to any adverse regulatory
prohibitions, constraints, penalties or fines.
5.5 Additional Reporting and Delivery Requirements on Completion
Date and on Construction Period Termination Date.
On or prior to the Completion Date for each Property, the Construction
Agent shall deliver to the Bank an Officer's Certificate in the form attached
hereto as Exhibit I or in such other form as is acceptable to the Bank.
Furthermore, on or prior to the Completion Date for each Property, the
Construction Agent shall deliver or cause to be delivered to the Bank (unless
previously delivered to the Bank) originals of the following, each of which
shall be in form and substance acceptable to the Bank, in its reasonable
discretion: (v) a title insurance endorsement regarding the title insurance
policy delivered in connection with the requirements of Section 5.3(g), but only
to the extent such endorsement is necessary to provide for insurance in an
amount at least equal to the maximum total Property Cost and, if endorsed, the
endorsement shall not include a title change or exception objectionable to the
Bank; (w) an as-built survey for such Property, (x) insurance certificates
respecting such Property as required hereunder and under the Lease Agreement,
and (y) if requested by the Bank, amendments to the Lessor Financing Statements
executed by the appropriate parties. In addition, on the Completion Date for
such Property the Construction Agent covenants and agrees that the recording
fees, documentary stamp taxes or similar amounts required to be paid in
connection with the related Mortgage Instrument shall have been paid in an
amount required by applicable law, subject, however, to the obligations of the
Bank to fund such costs to the extent required pursuant to Section 7.1.
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5.6 The Construction Agent Delivery of Construction Budget
Modifications.
The Construction Agent covenants and agrees to deliver to the Bank each
month notification of any modification to any Construction Budget regarding any
Property if such modification increases the cost to construct such Property;
provided no Construction Budget may be increased unless (a) the title insurance
policies referenced in Section 5.3(g) are also modified or endorsed, if
necessary, to provide for insurance in an amount that satisfies the requirements
of Section 5.4(f) of this Agreement and (b) after giving effect to any such
amendment, the Construction Budget remains in compliance with the requirements
of Section 5.4(d) of this Agreement.
5.7 Restrictions on Liens.
On each Property Closing Date, the Construction Agent shall cause each
Property acquired by the Lessor on such date to be free and clear of all Liens
except those referenced in Sections 6.2(c)(ii) and 6.2(c)(iii). On each date a
Property is either sold to a third party in accordance with the terms of the
Operative Agreements or, pursuant to Section 22.1(a) of the Lease Agreement,
retained by the Lessor, the Lessee shall cause such Property to be free and
clear of all Liens (other than Lessor Liens and such other Liens that are
expressly set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to such Property, to the extent such title
commitment has been approved by the Bank).
5.8 Payments.
All payments of principal, interest, Holder Advances, Holder Yield and
other amounts to be made by the Construction Agent or the Lessee under this
Agreement or any other Operative Agreements (excluding Excepted Payments which
shall be paid directly to the party to whom such payments are owed) shall be
made to the Bank at the office designated by the Bank from time to time in
Dollars and in immediately available funds, without setoff, deduction, or
counterclaim. Subject to the definition of "Interest Period" in Appendix A
attached hereto, whenever any payment under this Agreement or any other
Operative Agreements shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time in such case shall be included in the computation of interest,
Holder Yield and fees payable pursuant to the Operative Agreements, as
applicable and as the case may be.
5.9 Joinder Agreement Requirements.
Each Domestic Subsidiary formed or acquired subsequent to the Initial
Closing Date shall become a Guarantor and shall satisfy the following conditions
within thirty (30) days after the formation or acquisition of such Domestic
Subsidiary:
(a) such Domestic Subsidiary shall execute and deliver to Bank
a Joinder Agreement in the form attached hereto as EXHIBIT J;
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(b) such Domestic Subsidiary shall have delivered to Bank (x)
an Officer's Certificate of such Domestic Subsidiary in the form
attached hereto as EXHIBIT C, (y) a certificate of the Secretary or an
Assistant Secretary of such Domestic Subsidiary in the form attached
hereto as EXHIBIT D and (z) good standing certificates (or local
equivalent) from the respective states where such Domestic Subsidiary
is incorporated or otherwise organized and where the principal place of
business of such Domestic Subsidiary is located as to its good standing
in each such state;
(c) such Domestic Subsidiary shall have delivered to Bank an
opinion of counsel (acceptable to Bank) in the form attached hereto as
EXHIBIT H; and
(d) Bank shall have received such other documents,
certificates and information as Bank shall have reasonably requested.
5.10 Maintenance of the Lessee as a Wholly-Owned Entity.
From the Initial Closing Date and thereafter until such time as all
obligations of all Credit Parties under the Operative Agreements have been
satisfied and performed in full, Dollar Tree Stores, Inc. shall retain the
Lessee as a Wholly-Owned Entity.
5.11 Unilateral Right to Increase the Holder Commitments and the
Lender Commitments.
Notwithstanding any other provision of any Operative Agreement or any
objection by any Person (including without limitation any objection by any
Credit Party), the Bank, in its sole discretion, may unilaterally elect to
increase its Holder Commitment and its Lender Commitment in order to fund
amounts due and owing pursuant to Sections 7.1 and 11.5.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1 Representations and Warranties of the Borrower.
Effective as of the Initial Closing Date and the date of each Advance,
the Trust Company in its individual capacity and as the Borrower, as
indicated, represents and warrants (in addition to any representations
or warranties made in any Officer's or Secretary's Certificate
delivered pursuant hereto, which representations and warranties are
incorporated herein by reference) to each of the other parties hereto
that the execution, delivery and performance of each Operative
Agreement to which it is or will be a party, either in its individual
capacity or (assuming due authorization, execution and delivery of the
Trust Agreement by the Bank) as the Owner Trustee, as the case may be,
has been duly authorized by all necessary action on its part and
neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the
terms and provisions thereof (i) does or will require any approval or
12
consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any Legal Requirement
relating to its banking or trust powers, (iii) does or will contravene
or result in any breach of or constitute any default under, or result
in the creation of any Lien upon any of its property under, (A) its
charter or by-laws, or (B) any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or credit
agreement or other agreement or instrument to which it is a party or by
which it or its properties may be bound or affected, which
contravention, breach, default or Lien under clause (B) would
materially and adversely affect its ability, in its individual capacity
or as the Owner Trustee, to perform its obligations under the Operative
Agreements to which it is a party or (iv) does or will require any
Governmental Action by any Governmental Authority regulating its
banking or trust powers.
6.2 Representations and Warranties of Each Credit Party.
Effective as of the Initial Closing Date, the date of each Advance, the
date each Domestic Subsidiary delivers a Joinder Agreement and the Rent
Commencement Date, each Credit Party represents and warrants to each of the
other parties hereto that:
(a) The Lessee has delivered to the Bank the financial
statements and other reports referred to in Section 7.4 of the Lessee
Credit Agreement;
(b) The execution and delivery by each Credit Party of this
Agreement and the other applicable Operative Agreements as of such date
and the performance by each Credit Party of its respective obligations
under this Agreement and the other applicable Operative Agreements are
within the corporate powers of each Credit Party, have been duly
authorized by all necessary corporate action on the part of each Credit
Party (including without limitation any necessary shareholder action),
have been duly executed and delivered, have received all necessary
governmental approval, and do not and will not (i) violate any Legal
Requirement which is binding on any Credit Party or any of their
Subsidiaries, (ii) contravene or conflict with, or result in a breach
of, any provision of the Articles of Incorporation, By-Laws or other
organizational documents of any Credit Party or any of their
Subsidiaries or of any agreement, indenture, instrument or other
document which is binding on any Credit Party or any of their
Subsidiaries or (iii) result in, or require, the creation or imposition
of any Lien (other than pursuant to the terms of the Operative
Agreements) on any asset of any Credit Party or any of their
Subsidiaries;
(c) (i) This Agreement and the other applicable Operative
Agreements, executed prior to and as of such date by each Credit Party,
constitute the legal, valid and binding obligation of such Credit
Party, as applicable, enforceable against such Credit Party, in
accordance with their terms. Each Credit Party has executed the various
Operative Agreements required to be executed by such Credit Party as of
such date;
(ii) The Security Documents create, as security for the
Obligations (as such term is defined in the Security Agreement), valid
and enforceable security interests in, and Liens on, all of the
Collateral, in favor of the Bank, and such security interests and
13
Liens are subject to no other Liens other than Liens that are expressly
set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to the extent
such title commitment has been approved by the Bank. Upon recordation
of the Mortgage Instrument in the real estate recording office
identified by the Construction Agent or the Lessee, the Lien created by
the Mortgage Instrument in the real property described therein shall be
a perfected first priority mortgage Lien on such real property (or, in
the case of a Ground Lease, the leasehold estate under such Ground
Lease) in favor of the Bank. To the extent that the security interests
in the portion of the Collateral comprised of personal property can be
perfected by filing in the filing offices identified by the
Construction Agent or the Lessee, upon filing of the Lender Financing
Statements in such filing offices, the security interests created by
the Security Agreement shall be perfected first priority security
interests in such personal property in favor of the Bank; and
(iii) The Lease Agreement creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and
enforceable security interests in, and Liens on, each Property leased
thereunder, in favor of the Lessor, and such security interests and
Liens are subject to no other Liens other than Liens that are expressly
set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to the extent
such title commitment has been approved by the Bank. Upon recordation
of the memorandum of the Lease Agreement and the memorandum of a Ground
Lease (or, in either case, a short form lease) in the real estate
recording office identified by the Construction Agent or the Lessee,
the Lien created by the Lease Agreement in the real property described
therein shall be a perfected first priority mortgage Lien on such real
property (or, in the case of a Ground Lease, the leasehold estate under
such Ground Lease) in favor of the Bank. To the extent that the
security interests in the portion of any Property comprised of personal
property can be perfected by the filing in the filing offices
identified by the Construction Agent or the Lessee upon filing of the
Lessor Financing Statements in such filing offices, a security interest
created by the Lease Agreement shall be perfected first priority
security interests in such personal property in favor of the Lessor,
which rights pursuant to the Lessor Financing Statements are assigned
to the Bank;
(d) There are no material actions, suits or proceedings
pending or, to our knowledge, threatened against any Credit Party in
any court or before any Governmental Authority (nor shall any order,
judgment or decree have been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or prevent the
full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any Property or any Credit
Party's interest therein or (ii) question the validity or
enforceability of any Operative Agreement to which any Credit Party is
a party or the overall transaction described in the Operative
Agreements to which any Credit Party is a party; provided, for purposes
of disclosure, each Credit Party has described the litigation set forth
on Exhibit K;
14
(e) No Governmental Action by any Governmental Authority or
other authorization, registration, consent, approval, waiver, notice or
other action by, to or of any other Person pursuant to any Legal
Requirement, contract, indenture, instrument or agreement or for any
other reason is required to authorize or is required in connection with
(i) the execution, delivery or performance of any Operative Agreement,
(ii) the legality, validity, binding effect or enforceability of any
Operative Agreement, (iii) the acquisition, ownership, construction,
completion, occupancy, operation, leasing or subleasing of any Property
or (iv) any Advance, in each case, except those which have been
obtained and are in full force and effect;
(f) Upon the execution and delivery of each Lease Supplement
to the Lease, (i) the Lessee will have unconditionally accepted the
Property subject to the Lease Supplement and will have a valid and
subsisting leasehold interest in such Property, subject only to the
Permitted Liens, and (ii) no offset will exist with respect to any Rent
or other sums payable under the Lease;
(g) Except as otherwise contemplated by the Operative
Agreements, the Construction Agent shall not use the proceeds of any
Holder Advance or Loan for any purpose other than the purchase and/or
lease of the Properties, the acquisition, installation and testing of
the Equipment, the construction of Improvements and the payment of
Transaction Expenses and the fees, expenses and other disbursements
referenced in Section 7.1 of this Agreement, in each case which accrue
prior to the Rent Commencement Date with respect to a particular
Property;
(h) All information heretofore or contemporaneously herewith
furnished by the Credit Parties or their Subsidiaries to the Bank or
the Owner Trustee for purposes of or in connection with this Agreement
and the transactions contemplated hereby is, and all information
hereafter furnished by or on behalf of the Credit Parties or their
Subsidiaries to the Bank or the Owner Trustee pursuant hereto or in
connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified,
and such information, taken as a whole, does not and will not omit to
state any material fact necessary to make such information, taken as a
whole, not misleading;
(i) The principal place of business, chief executive office
and office of the Construction Agent and the Lessee where the
documents, accounts and records relating to the transactions
contemplated by this Agreement and each other Operative Agreement are
kept are located at 000 Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and
the states of formation and the chief executive offices of each other
Credit Party are located at the places set forth in EXHIBIT L;
(j) The representations and warranties of each Credit Party
set forth in any of the Operative Agreements (including the
Incorporated Representations and Warranties) are true and correct in
all material respects on and as of each such date as if made on and as
of such date. Each Credit Party is in all material respects in
compliance with its obligations under the Operative Agreements and
there exists no Default or Event of
15
Default under any of the Operative Agreements which is continuing and
which has not been cured within any cure period expressly granted under
the terms of the applicable Operative Agreement or otherwise waived in
accordance with the applicable Operative Agreement. No Default or Event
of Default will occur under any of the Operative Agreements as a result
of, or after giving effect to, the Advance requested by the Requisition
on the date of each Advance; and
(k) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, no portion of
any Property is located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other applicable
agency, or if any such Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or
other applicable agency, then flood insurance has been obtained for
such Property in accordance with Section 14.2(b) of the Lease and in
accordance with the National Flood Insurance Act of 1968, as amended
XXXXXXX 0X. XXXXXXXX
0X.0 Xxxxxxxx of Payment and Performance.
Subject to Section 6B.7, each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Financing Party the prompt payment and
performance of the Company Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) or when such
is otherwise to be performed; provided, notwithstanding the foregoing, the
obligations of the Guarantors under this Section 6B shall not constitute a
direct guaranty of the indebtedness of the Lessor evidenced by the Notes but
rather a guaranty of the Company Obligations arising under the Operative
Agreements. This Section 6B is a guaranty of payment and performance and not of
collection and is a continuing guaranty and shall apply to all Company
Obligations whenever arising. All rights granted to the Financing Parties under
this Section 6B shall be subject to the provisions of Section 8.2(h) and 8.6.
6B.2 Obligations Unconditional.
Each Guarantor agrees that the obligations of the Guarantors hereunder
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Operative Agreements, or
any other agreement or instrument referred to therein, or any substitution,
release or exchange of any other guarantee of or security for any of the Company
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety, guarantor or
co-obligor, it being the intent of this Section 6B.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that this Section 6B may be enforced by the
Financing Parties without the necessity at any time of resorting to or
exhausting any other security or collateral and without the necessity at any
time of having recourse to the Notes, the Certificates or any other of the
Operative Agreements or any collateral, if any, hereafter securing the
16
Company Obligations or otherwise and each Guarantor hereby waives the right to
require the Financing Parties to proceed against the Construction Agent, the
Lessee or any other Person (including without limitation a co-guarantor) or to
require the Financing Parties to pursue any other remedy or enforce any other
right. Each Guarantor further agrees that it hereby waives any and all right of
subrogation, indemnity, reimbursement or contribution against the Lessee and the
Construction Agent or any other Guarantor of the Company Obligations for amounts
paid under this Section 6B until such time as the Loans, Holder Advances,
accrued but unpaid interest, accrued but unpaid Holder Yield and all other
amounts owing under the Operative Agreements have been paid in full. Without
limiting the generality of the waiver provisions of this Section 6B, each
Guarantor hereby waives any rights to require the Financing Parties to proceed
against the Construction Agent, the Lessee or any co-guarantor or to require
Lessor to pursue any other remedy or enforce any other right, including without
limitation, any and all rights under N.C. Gen. Stat. ss. 26-7 through 26-9. Each
Guarantor further agrees that nothing contained herein shall prevent the
Financing Parties from suing on any Operative Agreement or foreclosing any
security interest in or Lien on any collateral, if any, securing the Company
Obligations or from exercising any other rights available to it under any
Operative Agreement, or any other instrument of security, if any, and the
exercise of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any Guarantor's obligations
hereunder; it being the purpose and intent of each Guarantor that its
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances; provided that any amounts due under this Section 6B which
are paid to or for the benefit of any Financing Party shall reduce the Company
Obligations by a corresponding amount (unless required to be rescinded at a
later date). Neither any Guarantor's obligations under this Section 6B nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Construction Agent or the Lessee
or by reason of the bankruptcy or insolvency of the Construction Agent or the
Lessee. Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Company Obligations and notice of or proof of
reliance by any Financing Party upon this Section 6B or acceptance of this
Section 6B. The Company Obligations shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Section 6B. All dealings between the Construction Agent, the
Lessee and any of the Guarantors, on the one hand, and the Financing Parties, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Section 6B.
6B.3 Modifications.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Company Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) no Financing Party shall have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Company
Obligations or the properties subject thereto; (c) the time or place of payment
of the Company Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (d) the Construction Agent, the Lessee and any other party liable for
payment under the Operative Agreements may be granted indulgences
17
generally; (e) any of the provisions of the Notes, the Certificates or any of
the other Operative Agreements may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Construction Agent, the Lessee or any other party liable for the payment of the
Company Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Company Obligations, all without notice to or further assent by
such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
6B.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Section 6B by any Financing
Party and of all extensions of credit or other Advances to the Construction
Agent and the Lessee by Bank pursuant to the terms of the Operative Agreements;
(b) presentment and demand for payment or performance of any of the Company
Obligations; (c) protest and notice of dishonor or of default with respect to
the Company Obligations or with respect to any security therefor; (d) notice of
any Financing Party obtaining, amending, substituting for, releasing, waiving or
modifying any security interest, lien or encumbrance, if any, hereafter securing
the Company Obligations, or any Financing Party's subordinating, compromising,
discharging or releasing such security interests, liens or encumbrances, if any;
and (e) all other notices to which such Guarantor might otherwise be entitled.
Notwithstanding anything to the contrary herein, (i) each Guarantor's payments
hereunder shall be due five (5) Business Days after written demand by the Bank
for such payment (unless the Company Obligations are automatically accelerated
pursuant to the applicable provisions of the Operative Agreements in which case
the Guarantors' payments shall be automatically due) and (ii) any modification
of the Operative Agreements which has the effect of increasing the Company
Obligations shall not be enforceable against a Guarantor unless such Guarantor
executes the document evidencing such modification or otherwise reaffirms its
guaranty in writing in connection with such modification.
6B.5 Reinstatement.
The obligations of the Guarantors under this Section 6B shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Company Obligations is rescinded or
must be otherwise restored by any holder of any of the Company Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify each Financing Party
on demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by any Financing Party in connection with
such rescission or restoration, including without limitation any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
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6B.6 Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand,
and each Financing Party, on the other hand, the Company Obligations may be
declared to be forthwith due and payable as provided in the applicable
provisions of the Operative Agreements (and shall be deemed to have become
automatically due and payable in the circumstances provided therein)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Company Obligations from becoming automatically
due and payable) as against any other Person and that, in the event of such
declaration (or such Company Obligations being deemed to have become
automatically due and payable), such Company Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors in accordance with the applicable provisions of the Operative
Agreements.
6B.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in
any of the other Operative Agreements, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including without limitation because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including without limitation
the Bankruptcy Code).
Subject to Section 6B.5, upon the satisfaction of the Company
Obligations in full, regardless of the source of payment, the Guarantors'
obligations hereunder shall be deemed satisfied, discharged and terminated other
than indemnifications set forth herein that expressly survive.
6B.8 Payment of Amounts to Bank.
Each Financing Party hereby instructs each Guarantor, and each
Guarantor hereby acknowledges and agrees, that until such time as the Loans and
the Holder Advances are paid in full and the Liens evidenced by the Security
Agreement and the Mortgage Instruments have been released any and all Rent
(excluding Excepted Payments which shall be payable to each other Person as
appropriate) and any and all other amounts of any kind or type under any of the
Operative Agreements due and owing or payable to any Person shall instead be
paid directly to Bank (excluding Excepted Payments which shall be payable to
each other Person as appropriate) or as Bank may direct from time to time for
allocation in accordance with Section 8.7 hereof.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
7.1 Transaction Expenses.
(a) Assuming no Default or Event of Default shall have
occurred and be continuing, the Lessor agrees to pay, or cause to be
paid, all Transaction Expenses; provided, however, the Lessor shall pay
such amounts described in this Section 7.1(a)
19
only if (i) such amounts are properly described in a Requisition
delivered in accordance with the Operative Agreements, and (ii) funds
are made available by the Bank in connection with such Requisition in
an amount sufficient to allow such payment.
(b) [Intentionally Left Blank].
(c) All fees payable pursuant to the Operative Agreements
shall be calculated on the basis of a year of three hundred sixty (360)
days for the actual days elapsed.
7.2 Brokers Fees.
The Lessor agrees to pay or cause to be paid any and all brokers' fees,
if any, including without limitation any interest and penalties thereon, which
are payable in connection with the transactions contemplated by this Agreement
and the other Operative Agreements; provided, however, the Lessor shall pay such
amounts described in this Section 7.2 only if (i) such amounts are properly
described in a Requisition delivered in accordance with the Operative
Agreements, and (ii) funds are made available by the Bank in connection with
such Requisition in an amount sufficient to allow such payment.
7.3 Certain Fees and Expenses.
The Lessor agrees to pay or cause to be paid (a) the initial and annual
Owner Trustee's fee and all reasonable expenses of the Owner Trustee and any
co-trustees (including without limitation reasonable counsel fees and expenses)
or any successor owner trustee and/or co-trustee, for acting as the owner
trustee under the Trust Agreement, (b) all reasonable costs and expenses
incurred by the Credit Parties, the Bank or the Lessor in entering into any
Lease Supplement and any future amendments, modifications, supplements,
restatements and/or replacements with respect to any of the Operative
Agreements, whether or not such Lease Supplement, amendments, modifications,
supplements, restatements and/or replacements are ultimately entered into, or
giving or withholding of waivers of consents hereto or thereto, which have been
requested by the Lessee, the Bank or the Lessor, (c) all reasonable costs and
expenses incurred by any Credit Party, the Bank or the Lessor in connection with
any exercise of remedies under any Operative Agreement or any purchase of any
Property by the Construction Agent, the Lessee or any third party and (d) all
reasonable costs and expenses incurred by the Credit Parties, the Bank or the
Lessor in connection with any transfer or conveyance of any Property, whether or
not such transfer or conveyance is ultimately accomplished; provided, however,
the Lessor shall pay such amounts described in this Section 7.3 only if (i) such
amounts are properly described in a Requisition delivered in accordance with the
Operative Agreements, and (ii) funds are made available by the Bank in
connection with such Requisition in an amount sufficient to allow such payment.
20
SECTION 8. OTHER COVENANTS AND AGREEMENTS.
8.1 Cooperation with the Construction Agent or the Lessee.
The Bank and the Lessor (at the direction of the Bank) shall, at the
expense of and to the extent reasonably requested by the Construction Agent or
the Lessee (but without assuming additional liabilities on account thereof and
only to the extent such is acceptable to the Bank and the Lessor (at the
direction of the Bank) in its reasonable discretion, cooperate with the
Construction Agent or the Lessee in connection with the Construction Agent or
the Lessee satisfying its covenant obligations contained in the Operative
Agreements including without limitation at any time and from time to time,
promptly and duly executing and delivering any and all such further instruments,
documents and financing statements (and continuation statements related
thereto).
8.2 Covenants of the Owner Trustee and the Bank.
Each of the Owner Trustee and the Bank hereby agrees that so long as
this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust capacity or in its
individual capacity) nor the Bank will create or permit to exist at any
time, and each of them will, at its own cost and expense, promptly take
such action as may be necessary duly to discharge, or to cause to be
discharged, all Lessor Liens on the Properties attributable to it;
provided, however, that the Owner Trustee and the Bank shall not be
required to so discharge any such Lessor Lien while the same is being
contested in good faith by appropriate proceedings diligently
prosecuted so long as such proceedings shall not materially and
adversely affect the rights of the Lessee under the Lease and the other
Operative Agreements or involve any material danger of impairment of
the Liens of the Security Documents or of the sale, forfeiture or loss
of, and shall not interfere with the use or disposition of, any
Property or title thereto or any interest therein or the payment of
Rent;
(b) Without prejudice to any right under the Trust Agreement
of the Owner Trustee to resign (subject to requirement set forth in the
Trust Agreement that such resignation shall not be effective until a
successor shall have agreed to accept such appointment), or the Bank's
rights under the Trust Agreement to remove the institution acting as
the Owner Trustee, each of the Owner Trustee and the Bank hereby agrees
with the Lessee (i) not to terminate or revoke the trust created by the
Trust Agreement except as permitted by Article VIII of the Trust
Agreement, (ii) not to amend, supplement, terminate or revoke or
otherwise modify any provision of the Trust Agreement in such a manner
as to adversely affect the rights of any such party without the prior
written consent of such party and (iii) to comply with all of the terms
of the Trust Agreement, the nonperformance of which would adversely
affect such party;
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(c) The Owner Trustee or any successor may resign or be
removed by the Bank as the Owner Trustee, a successor Owner Trustee may
be appointed and a corporation may become the Owner Trustee under the
Trust Agreement, only in accordance with the provisions of Article IX
of the Trust Agreement and, with respect to such appointment, with the
consent of the Lessee (so long as there shall be no Lease Event of
Default that shall have occurred and be continuing), which consent
shall not be unreasonably withheld or delayed;
(d) The Owner Trustee, in its capacity as the Owner Trustee
under the Trust Agreement, and not in its individual capacity, shall
not contract for, create, incur or assume any Indebtedness, or enter
into any business or other activity or enter into any contracts or
agreements, other than pursuant to or under the Operative Agreements;
(e) The Bank will not instruct the Owner Trustee to take any
action in violation of the terms of any Operative Agreement;
(f) Neither the Bank nor the Owner Trustee shall (i) commence
any case, proceeding or other action with respect to the Owner Trustee
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization,
arrangement, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (ii) seek appointment of a
receiver, trustee, custodian or other similar official with respect to
the Owner Trustee or for all or any substantial benefit of the
creditors of the Owner Trustee; and neither the Bank nor the Owner
Trustee shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth
in this paragraph;
(g) The Owner Trustee shall give prompt notice to the Lessee
and the Bank if the Owner Trustee's principal place of business or
chief executive office, or the office where the records concerning the
accounts or contract rights relating to any Property are kept, shall
cease to be located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, or if it shall change its name; and
(h) The Owner Trustee shall take or refrain from taking such
actions and grant or refrain from granting such approvals with respect
to the Operative Agreements and/or relating to any Property in each
case as directed in writing by the Bank.
8.3 Credit Party Covenants, Consent and Acknowledgment.
(a) Each Credit Party acknowledges and agrees that the Owner
Trustee, pursuant to the terms and conditions of the Security Agreement
and the Mortgage Instruments, shall create Liens respecting the various
personal property, fixtures and real property described therein in
favor of the Bank. Each Credit Party hereby irrevocably consents to the
creation, perfection and maintenance of such Liens. Each Credit Party
shall, to the extent reasonably requested by any of the other parties
hereto, cooperate with the other parties in connection with their
covenants herein or in the other Operative
22
Agreements and shall from time to time duly execute and deliver any and
all such future instruments, documents and financing statements (and
continuation statements related thereto) as any other party hereto may
reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each
Credit Party hereby acknowledges and agrees, that until such time as
the Loans and the Holder Advances are paid in full and the Liens
evidenced by the Security Agreement and the Mortgage Instruments have
been released (i) any and all Rent (excluding Excepted Payments which
shall be payable to any other Person as appropriate) and any and all
other amounts of any kind or type under any of the Operative Agreements
due and owing or payable to any Person shall instead be paid directly
to the Bank (excluding Excepted Payments which shall be payable to any
other Person as appropriate) or as the Bank may direct from time to
time for allocation in accordance with Section 8.7 hereof, (ii) all
rights of the Lessor under the Lease shall be exercised by the Bank and
(iii) each Credit Party shall cause all notices, certificates,
financial statements, communications and other information which are
delivered, or are required to be delivered, to the Lessor, to also be
delivered at the same time to the Bank.
(c) No Credit Party shall consent to or permit any amendment,
supplement or other modification of the terms or provisions of any
Operative Agreement except in accordance with Section 12.4 of this
Agreement.
(d) Each Credit Party hereby covenants and agrees that, except
for amounts payable as Basic Rent, any and all payment obligations
owing from time to time under the Operative Agreements by any Person to
the Bank or any other Person shall (without further action) be deemed
to be Supplemental Rent obligations payable by the Lessee and the other
Credit Parties.
(e) At any time the Lessor or the Bank is entitled under the
Operative Agreements to possession of a Property or any component
thereof, each of the Construction Agent and the Lessee hereby covenants
and agrees, at its own cost and expense, to assemble and make the same
available to the Bank (on behalf of the Lessor).
(f) The Lessee hereby covenants and agrees that Advances for
items other than Land and Improvements respecting any individual parcel
of Property shall at no time constitute in excess of ten percent (10%)
of the aggregate Advances respecting such parcel of Property funded at
such time under the Operative Agreements.
(g) The Lessee hereby covenants and agrees that it shall give
prompt notice to the Bank if the Lessee's principal place of business
or chief executive office, or the office where the records concerning
the accounts or contract rights relating to any Property are kept,
shall cease to be located at 000 Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 or if it shall change its name.
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(h) Each Credit Party shall promptly notify the Bank, or cause
the Bank to be promptly notified, upon such Credit Party gaining
knowledge of the occurrence of any Default or Event of Default which is
continuing at such time. In any event, such notice shall be provided to
the Bank within ten (10) days of when such Credit Party gains such
knowledge.
(i) Lessee shall take all action that Lessee deems necessary
to assure that Lessee's computer based systems are able to operate and
effectively process data including dates on and after January 1, 2000.
(j) Lessee shall perform any and all obligations of Lessor
under, and cause Lessor to otherwise remain in full compliance with,
the terms and provisions of each Ground Lease, if any.
(k) Until all the obligations of the Credit Parties under the
Operative Agreements have been finally and indefeasibly paid and
satisfied in full, the Commitments and the Holder Commitments
terminated and the Term has expired or been earlier terminated, the
Lessee will furnish or cause to be furnished to Bank at the address set
forth or referenced in Section 12.2 of this Agreement, or such other
office as may be designated by Bank from time to time: (i) not later
than forty-five (45) days after the end of each fiscal quarter, a
certificate duly signed by the chief executive officer, chief operating
officer, chief financial officer, treasurer or controller of DTS
setting forth the ratio of Consolidated Funded Debt to Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters ending
with such quarter-end and setting forth the computations employed in
calculating the ratio (the "Margin Certificate") and (ii) at each time
financial statements are delivered or to be delivered pursuant to
Section 8.3(m) hereof or Section 28.1 of the Lease, a compliance
certificate duly executed by the president, treasurer, chief financial
offer or controller of DTS substantially in the form of Exhibit M
attached hereto (the "Officer's Compliance Certificate").
(l) Each Credit Party hereby covenants and agrees to cause
each Domestic Subsidiary formed or acquired after the Initial Closing
Date to execute a Joinder Agreement and to observe the terms of
Sections 5.9(a)-(d) of this Agreement, all within thirty (30) days of
the formation or acquisition of such Domestic Subsidiary.
(m) The Lessee hereby covenants and agrees to provide (i) no
later than one hundred twenty (120) days after the fiscal year end of
DTS, the consolidated, audited and unqualified financial statements of
DTS, as prepared in accordance with GAAP by an independent certified
public accountant acceptable to the Bank and (ii) no later than 45 days
after the end of each fiscal quarter of DTS, quarterly
management-prepared consolidated financial statements of DTS, including
a balance sheet, a profit and loss statement and a statement of changes
in cash flow.
8.4 Allocation of Certain Payments.
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Except for Excepted Payments, the parties hereto acknowledge and agree
that all payments due and owing by the Lessee to the Lessor under the Lease or
any of the other Operative Agreements shall be made by the Lessee directly to
the Bank as more particularly provided in Section 8.3 hereof. The Lessor, the
Bank and the Lessee acknowledge the terms of Section 8.7 of this Agreement
regarding the allocation of payments and other amounts made or received from
time to time under the Operative Agreements and agree, that all such payments
and amounts are to be allocated as provided in Section 8.7 of this Agreement.
8.5 Grant of Easements, etc.
The Bank hereby agrees that, so long as no Event of Default shall have
occurred and be continuing, the Owner Trustee shall, from time to time at the
request of the Lessee (and with the prior consent of the Bank, which consent the
Bank will not withhold or delay unreasonably), in connection with the
transactions contemplated by the Agency Agreement, the Lease or the other
Operative Agreements, (i) grant easements and other rights in the nature of
easements with respect to any Property, (ii) release existing easements or other
rights in the nature of easements which are for the benefit of any Property,
(iii) execute and deliver to any Person any instrument appropriate to confirm or
effect such grants or releases, and (iv) execute and deliver to any Person such
other documents or materials in connection with the acquisition, development,
construction, testing or operation of any Property, including without limitation
reciprocal easement agreements, construction contracts, operating agreements,
development agreements, plats, replats or subdivision documents; provided, that
each of the agreements referred to in this Section 8.5 shall be of the type
normally executed by the Lessee in the ordinary course of the Lessee's business
and shall be on commercially reasonable terms so as not to diminish the value of
any Property in any material respect.
8.6 Appointment by the Bank and the Owner Trustee.
The Bank is appointed to provide notices under the Operative Agreements
on behalf of the Owner Trustee (as determined by the Bank, in its reasonable
discretion), to receive notices under the Operative Agreements on behalf of the
Owner Trustee and (subject to Sections 8.5 and 9.2) to take such other action
under the Operative Agreements on behalf of the Owner Trustee as the Bank shall
determine in its reasonable discretion from time to time. The Bank hereby
accepts such appointments. Further, the Bank shall be entitled to take such
action on behalf of the Owner Trustee as is delegated to the Bank under any
Operative Agreement (whether express or implied) as may be reasonably incidental
thereto. The parties hereto hereby agree to the provisions contained in this
Section 8.6.
8.7 Collection and Allocation of Payments and Other Amounts.
(a) Each Credit Party has agreed pursuant to Section 5.8 and
otherwise in accordance with the terms of this Agreement to pay to (i)
the Bank any and all Rent (excluding Excepted Payments) and any and all
other amounts of any kind or type under any of the Operative Agreements
due and owing or payable to any Person and (ii) each Person as
appropriate the Excepted Payments.
25
(b) Payments and other amounts received by the Bank from time
to time in accordance with the terms of subparagraph (a) shall be
applied and allocated by the Bank first, to the payment of interest on
the Loans and thereafter the principal of the Loans which is due and
payable on such date; second, to the payment of accrued Holder Yield
with respect to the Holder Advances and thereafter the portion of the
Holder Advances which is due on such date; and third, if no Default or
Event of Default is in effect, any excess shall be paid to such Person
or Persons as the Lessee may designate.
(c) Upon the termination of the Commitments and the payment in
full of the Loans and all other amounts owing by the Owner Trustee
hereunder or under any Credit Document and the payment in full of all
amounts owing to the Holder and the Owner Trustee under the Trust
Agreement, any moneys remaining with the Bank shall be returned to the
Lessee or such other Person or Persons as the Lessee may designate. In
the event of an Acceleration it is agreed that, prior to the
application and allocation of amounts received by the Bank in the order
described in Section 8.7(b) above, any such amounts shall first be
applied and allocated to the payment of (i) any and all sums advanced
by the Bank in order to preserve the Collateral or to preserve its Lien
thereon, (ii) the expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing or realizing on the Collateral,
or of any exercise by the Bank of its rights under the Security
Documents, together with reasonable attorneys' fees and expenses and
court costs and (iii) any and all other amounts reasonably owed to the
Bank under or in connection with the transactions contemplated by the
Operative Agreements (including without limitation any accrued and
unpaid administration fees).
8.8 Release of Properties, etc.
If the Lessee shall at any time purchase any Property pursuant to the
Lease, or the Construction Agent shall purchase any Property pursuant to the
Agency Agreement, or if any Property shall be sold in accordance with Article
XXII of the Lease, then, upon satisfaction by the Owner Trustee of its
obligation to prepay the Loans, Holder Advances and all other amounts owing to
the Bank under the Operative Agreements, the Bank shall release such Properties
from the Liens created by the Security Documents to the extent of its interest
therein. In addition, upon the termination of the Commitments and the Holder
Commitments and the payment in full of the Loans, the Holder Advances and all
other amounts owing by the Owner Trustee and the Lessee hereunder or under any
other Operative Agreement, the Bank shall release all of the Properties from the
Liens created by the Security Documents to the extent of its interest therein.
Upon request of the Owner Trustee following any such release, the Bank shall, at
the sole cost and expense of the Lessee, execute and deliver to the Owner
Trustee and the Lessee such documents as the Owner Trustee or the Lessee shall
reasonably request to evidence such release.
26
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.
9.1 The Construction Agents and the Lessees Credit Agreement Rights.
Notwithstanding anything to the contrary contained in the Credit
Agreement, the Bank, the Credit Parties and the Owner Trustee hereby agree that,
prior to the occurrence and continuation of any Default or Event of Default, the
Construction Agent or the Lessee, as the case may be, shall have the following
rights:
(a) the right to designate an account to which amounts funded
under the Operative Agreements shall be credited pursuant to Section
2.3(a) of the Credit Agreement;
(b) the right to terminate or reduce the Commitments pursuant
to Section 2.5(a) of the Credit Agreement;
(c) the right to exercise the conversion and continuation
options pursuant to Section 2.7 of the Credit Agreement;
(d) the right to receive any notice and any certificate, in
each case issued pursuant to Section 2.11(a) of the Credit Agreement;
(e) the right to consent to any assignment by the Bank to
which the Lessor has the right to consent pursuant to Section 9.8 of
the Credit Agreement.
9.2 The Construction Agents and the Lessees Trust Agreement Rights.
Notwithstanding anything to the contrary contained in the Trust
Agreement, the Credit Parties, the Owner Trustee and the Bank hereby agree that,
prior to the occurrence and continuation of any Default or Event of Default, the
Construction Agent or the Lessee, as the case may be, shall have the following
rights:
(a) the right to exercise the conversion and continuation
options pursuant to Section 3.8 of the Trust Agreement;
(b) the right to receive any notice and any certificate, in
each case issued pursuant to Section 3.9(a) of the Trust Agreement;
(c) the right to exercise the removal options contained in
Section 9.1 of the Trust Agreement; provided, however, that no removal
of the Owner Trustee and appointment of a successor Owner Trustee by
the Holder pursuant to Section 9.1 of the Trust Agreement shall be made
without the prior written consent (not to be unreasonably withheld or
delayed) of the Lessee.
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SECTION 10. TRANSFER OF INTEREST.
10.1 Restrictions on Transfer.
The Bank may assign or transfer all of its interest hereunder and under
the other Operative Agreements in accordance with Section 9.8 of the Credit
Agreement. The Bank may, directly or indirectly, assign, convey or otherwise
transfer all of its right, title or interest in or to the Trust Estate or the
Trust Agreement with the prior written consent of the Lessee (which consent
shall not be unreasonably withheld or delayed) and in accordance with the terms
of Section 11.8(b) of the Trust Agreement. The Owner Trustee may, subject to the
rights of the Lessee under the Lease and the other Operative Agreements and to
the Lien of the applicable Security Documents but only with the prior written
consent of the Bank (which consent may be withheld by the Bank in its sole
discretion) and (provided, no Default or Event of Default has occurred and is
continuing) with the consent of the Lessee, directly or indirectly, assign,
convey, appoint an agent with respect to enforcement of, or otherwise transfer
any of its right, title or interest in or to any Property, the Lease, the Trust
Agreement and the other Operative Agreements (including without limitation any
right to indemnification thereunder), or any other document relating to a
Property or any interest in a Property as provided in the Trust Agreement and
the Lease. The provisions of the immediately preceding sentence shall not apply
to the obligations of the Owner Trustee to transfer Property to the Lessee or a
third party purchaser pursuant to Article XXII of the Lease upon payment for
such Property in accordance with the terms and conditions of the Lease. No
Credit Party may assign any of the Operative Agreements or any of their
respective rights or obligations thereunder or with respect to any Property in
whole or in part to any Person without the prior written consent of the Bank and
the Lessor.
10.2 Effect of Transfer.
From and after any transfer effected in accordance with this Section
10, the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor shall remain liable hereunder and under
such other documents to the extent that the transferee shall not have assumed
the obligations of the transferor thereunder. Upon any transfer by the Owner
Trustee or the Bank as above provided, any such transferee shall assume the
obligations of the Owner Trustee or the Bank, as the case may be.
Notwithstanding any transfer of all or a portion of the transferor's interest as
provided in this Section 10, the transferor shall be entitled to all benefits
accrued and all rights vested prior to such transfer including without
limitation rights to indemnification under any such document.
SECTION 11. INDEMNIFICATION.
11.1 General Indemnity.
Whether or not any of the transactions contemplated hereby shall be
consummated, the Indemnity Provider hereby assumes liability for and agrees to
defend, indemnify and hold
28
harmless each Indemnified Person on an After Tax Basis from and against any
Claims, which may be imposed on, incurred by or asserted against an Indemnified
Person by any third party, including without limitation Claims arising from the
negligence of an Indemnified Person (but not to the extent such Claims arise
from the gross negligence or willful misconduct of such Indemnified Person) in
any way relating to or arising or alleged to arise out of the execution,
delivery, performance or enforcement of this Agreement, the Lease or any other
Operative Agreement or on or with respect to any Property or any component
thereof, including without limitation Claims in any way relating to or arising
or alleged to arise out of (a) the financing, refinancing, purchase, acceptance,
rejection, ownership, design, construction, refurbishment, development,
delivery, acceptance, nondelivery, leasing, subleasing, possession, use,
occupancy, operation, maintenance, repair, modification, transportation,
condition, sale, return, repossession (whether by summary proceedings or
otherwise), or any other disposition of any Property or any part thereof,
including without limitation the acquisition, holding or disposition of any
interest in the Property, lease or agreement comprising a portion of any
thereof; (b) any latent or other defects in any Property or any portion thereof
whether or not discoverable by an Indemnified Person or the Indemnity Provider;
(c) a violation of Environmental Laws, Environmental Claims or other loss of or
damage to any property or the environment relating to the Property, the Lease,
the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or
any transaction contemplated thereby; (e) any breach by the Indemnity Provider
of any of its representations or warranties under the Operative Agreements to
which the Indemnity Provider is a party or failure by the Indemnity Provider to
perform or observe any covenant or agreement to be performed by it under any of
the Operative Agreements; (f) the transactions contemplated hereby or by any
other Operative Agreement, in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA; (g) personal injury, death or property damage,
including without limitation Claims based on strict or absolute liability in
tort; and (h) any fees, expenses and/or other assessments by any business park
or any other applicable entity with oversight responsibility for the applicable
Property. The Indemnity Provider shall be permitted to contest or respond to any
Claim subject to this Section 11.1 with the prior written consent of the
Indemnified Person, which consent shall not be unreasonably withheld or delayed.
11.2 General Tax Indemnity.
(a) The Indemnity Provider shall pay and assume liability for,
and does hereby agree to indemnify, protect and defend each Property
and all Indemnified Persons, and hold them harmless against, all
Impositions on an After Tax Basis, and all payments pursuant to the
Operative Agreements shall be made free and clear of and without
deduction for any and all present and future Impositions.
(b) Notwithstanding anything to the contrary in Section
11.2(a) hereof, the following shall be excluded from the indemnity
required by Section 11.2(a):
(i) Taxes (other than Taxes that are, or are in the
nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on an Indemnified Person
(other than the Lessor, the Owner Trustee and the Trust) by
the United States federal government that are based on or
measured by the net income
29
(including without limitation taxes based on capital gains and
minimum taxes) of such Person; provided, that this clause (i)
shall not be interpreted to prevent a payment from being made
on an After Tax Basis if such payment is otherwise required to
be so made;
(ii) Taxes (other than Taxes that are, or are in the
nature of, sales, use, rental, value added, transfer or
property taxes) that are imposed on any Indemnified Person
(other than the Lessor, the Owner Trustee and the Trust) by
any state or local jurisdiction or taxing authority within any
state or local jurisdiction and that are based upon or
measured by the net income (including without limitation taxes
based on capital gains and minimum taxes) of such Person;
provided that such Taxes shall not be excluded under this
subparagraph (ii) to the extent such Taxes would have been
imposed had the location, possession or use of any Property
in, the location or the operation of the Lessee in, or the
Lessee's making payments under the Operative Agreements from,
the jurisdiction imposing such Taxes been the sole connection
between such Indemnified Person and the jurisdiction imposing
such Taxes; provided, further, that this clause (ii) shall not
be interpreted to prevent a payment from being made on an
After Tax Basis if such payment is otherwise required to be so
made;
(iii) any Tax to the extent it relates to any act,
event or omission that occurs after the termination of the
Lease and redelivery or sale of the Property in accordance
with the terms of the Lease (but not any Tax that relates to
such termination, redelivery or sale and/or to any period
prior to such termination, redelivery or sale); and
(iv) any Taxes which are imposed on an Indemnified
Person as a result of the gross negligence or willful
misconduct of such Indemnified Person, but not Taxes imposed
as a result of ordinary negligence of such Indemnified Person;
(c) Subject to the terms of Section 11.2(f), the Indemnity
Provider shall pay or cause to be paid all Impositions
directly to the taxing authorities where feasible and
otherwise to the Indemnified Person, as appropriate, and the
Indemnity Provider shall at its own expense, upon such
Indemnified Person's reasonable request, furnish to such
Indemnified Person copies of official receipts or other
satisfactory proof evidencing such payment.
(d) The Indemnity Provider shall be responsible for preparing
and filing any real and personal property or ad valorem tax returns in
respect of each Property and any other tax returns required for the
Owner Trustee respecting the transactions described in the Operative
Agreements. In case any other report or tax return shall be required to
be made with respect to any obligations of the Indemnity Provider under
or arising out of subsection (a) and of which the Indemnity Provider
has knowledge or should have knowledge, the Indemnity Provider, at its
sole cost and expense, shall notify the relevant Indemnified Person of
such requirement and (except if such Indemnified Person notifies
30
the Indemnity Provider that such Indemnified Person intends to prepare
and file such report or return) (A) to the extent required or permitted
by and consistent with Legal Requirements, make and file in the
Indemnity Provider's name such return, statement or report; and (B) in
the case of any other such return, statement or report required to be
made in the name of such Indemnified Person, advise such Indemnified
Person of such fact and prepare such return, statement or report for
filing by such Indemnified Person or, where such return, statement or
report shall be required to reflect items in addition to any obligation
of the Indemnity Provider under or arising out of subsection (a),
provide such Indemnified Person at the Indemnity Provider's expense
with information sufficient to permit such return, statement or report
to be properly made with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a). Such Indemnified
Person shall,upon the Indemnity Provider's request and at the Indemnity
Provider's expense, provide any data maintained by such Indemnified
Person (and not otherwise available to or within the control of the
Indemnity Provider) with respect to each Property which the Indemnity
Provider may reasonably require to prepare any required tax returns or
reports.
(e) As between the Indemnity Provider on one hand, and the
Bank on the other hand, the Indemnity Provider shall be responsible
for, and the Indemnity Provider shall indemnify and hold harmless the
Bank (without duplication of any indemnification required by subsection
(a)) on an After Tax Basis against, any obligation for United States or
foreign withholding taxes or similar levies, imposts, charges, fees,
deductions or withholdings (collectively, "Withholdings") imposed in
respect of the interest payable on the Notes, Holder Yield payable on
the Certificates or with respect to any other payments under the
Operative Agreement (all such payments being referred to herein as
"Exempt Payments" to be made without deduction, withholding or set off)
and, if the Bank receives a demand for such payment from any taxing
authority or a Withholding is otherwise required with respect to any
Exempt Payment, the Indemnity Provider shall discharge such demand on
behalf of the Bank.
If the Bank or any of its Affiliates files a consolidated tax
return (or equivalent) and subsequently receives the benefit in any
country of a tax credit or an allowance resulting from U.S. Taxes with
respect to which it has received a payment of an additional amount
under this Section 11.2(e), the Bank will pay to the Indemnity Provider
such part of that benefit as in the opinion of the Bank will leave it
(after such payment) in a position no more and no less favorable than
it would have been in if no additional payment had been required to be
paid, provided always that (i) the Bank will be the sole judge of the
amount of any such benefit and of the date on which it is received,
(ii) the Bank will have the absolute discretion as to the order and
manner in which it employs or claims tax credits and allowances
available to it and (iii) the Bank will not be obliged to disclose to
the Borrower any information regarding its tax affairs or tax
computations. For the purposes of this Section 11.2(e), "U.S. Taxes"
shall mean any present or future tax, assessment or other charge or
levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein.
31
(f) If a written Claim is made against any Indemnified Person
or if any proceeding shall be commenced against such Indemnified Person
(including without limitation a written notice of such proceeding), for
any Impositions, the Indemnity Provider shall be permitted to contest
such Claim with the written consent of the Indemnified Person, which
consent shall not be unreasonably withheld or delayed; provided,
however, that the Indemnity Provider shall have the right to conduct
and control such contest only if such contest involves a Tax other than
a Tax on net income of the Indemnified Person and can be pursued
independently from any other proceeding involving a Tax liability of
such Indemnified Person.
11.3 Increased Costs, Illegality, etc.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request hereafter adopted, promulgated
or made by any central bank or other governmental authority (whether or
not having the force of law), there shall be any increase in the cost
to the Bank of agreeing to make or making, funding or maintaining
Advances, then the Lessee shall from time to time, upon demand by the
Bank, pay to the Bank additional amounts sufficient to compensate the
Bank for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Lessee by the Bank, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If the Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law, but in
each case promulgated or made after the date hereof) affects or would
affect the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank and that the amount of
such capital is increased by or based upon the existence of the Bank's
commitment to make Advances and other commitments of this type or upon
the Advances, then, upon demand by the Bank, the Lessee shall pay to
the Bank, from time to time as specified by the Bank, additional
amounts sufficient to compensate the Bank or such corporation in the
light of such circumstances, to the extent that the Bank reasonably
determines such increase in capital to be allocable to the existence of
the Bank's commitment to make such Advances. A certificate as to such
amounts submitted to the Lessee by the Bank shall be conclusive and
binding for all purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Lessee
shall pay to the Bank on the last day of the Interest Period therefor
so long as such it is maintaining reserves against "Eurocurrency
liabilities" under Regulation D an additional amount (determined by the
Bank) equal to the product of the following for each Eurodollar Loan or
Eurodollar Holder Advance, as the case may be, for each day during such
Interest Period:
(i) the principal amount of such Eurodollar Loan or
Eurodollar Holder Advance, as the case may be, outstanding on
such day; and
32
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such Eurodollar Loan or Eurodollar Holder Advance,
as the case may be, for such Interest Period as provided in
the Credit Agreement or the Trust Agreement, as the case may
be (less the Applicable Percentage), and the denominator of
which is one (1) minus the effective rate (expressed as a
decimal) at which such reserve requirements are imposed on
such Financing Party on such day minus (y) such numerator; and
(iii) 1/360.
(d) Without affecting its rights under Sections 11.3(a),
11.3(b) or 11.3(c) or any other provision of any Operative Agreement,
the Bank agrees that if there is any increase in any cost to or
reduction in any amount receivable by the Bank with respect to which
the Lessee would be obligated to compensate the Bank pursuant to
Sections 11.3(a) or 11.3(b), the Bank shall use reasonable efforts to
select an alternative office for Advances which would not result in any
such increase in any cost to or reduction in any amount receivable by
the Bank; provided, however, that the Bank shall not be obligated to
select an alternative office for Advances if the Bank determines that
(i) as a result of such selection such the Bank would be in violation
of any applicable law, regulation, treaty, or guideline, or would incur
additional costs or expenses or (ii) such selection would be
inadvisable for regulatory reasons or materially inconsistent with the
interests of the Bank.
(e) With reference to the obligations of the Lessee set forth
in Sections 11.3(a) through 11.3(d), the Lessee shall not have any
obligation to pay to the Bank amounts owing under such Sections for any
period which is more than one (1) year prior to the date upon which the
request for payment therefor is delivered to the Lessee.
(f) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the Bank to
perform its obligations hereunder to make or maintain Eurodollar Loans
or Eurodollar Holder Advances, as the case may be, then (i) each
Eurodollar Loan or Eurodollar Holder Advance, as the case may be, will
automatically, at the earlier of the end of the Interest Period for
such Eurodollar Loan or Eurodollar Holder Advance, as the case may be,
or the date required by law, convert into an ABR Loan or an ABR Holder
Advance, as the case may be, and (iii) the obligation of the Bank to
make, convert or continue Eurodollar Loans or Eurodollar Holder
Advances, as the case may be, shall be suspended until the Agent shall
notify the Lessee that the Bank has determined that the circumstances
causing such suspension no longer exist.
33
11.4 Funding/Contribution Indemnity.
Subject to the provisions of Section 2.11(a) of the Credit Agreement
and 3.9(a) of the Trust Agreement, as the case may be, the Lessee agrees to
indemnify the Bank and to hold the Bank harmless from any loss or reasonable
expense which such Financing Party may sustain or incur as a consequence of (a)
any default in connection with the drawing of funds for any Advance, (b) any
default in making any prepayment after a notice thereof has been given in
accordance with the provisions of the Operative Agreements or (c) the making of
a voluntary or involuntary payment of Eurodollar Loans or Eurodollar Holder
Advances, as the case may be, on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification shall be in an amount equal to
the excess, if any, of (x) the amount of interest or Holder Yield, as the case
may be, which would have accrued on the amount so paid, or not so borrowed,
accepted, converted or continued for the period from the date of such payment or
of such failure to borrow, accept, convert or continue to the last day of such
Interest Period (or, in the case of a failure to borrow, accept, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable Eurodollar Rate plus the Applicable
Percentage for such Loan or Holder Advance, as the case may be, for such
Interest Period over (y) the amount of interest (as determined by the Bank in
its reasonable discretion) which would have accrued to the Bank on such amount
by (i) (in the case of Loans) reemploying such funds in loans of the same type
and amount during the period from the date of payment or failure to borrow to
the last day of the then applicable Interest Period (or, in the case of a
failure to borrow, the Interest Period that would have commenced on the date of
such failure) and (ii) (in the case of Holder Advances) placing such amount on
deposit for a comparable period with leading banks in the relevant interest rate
market. This covenant shall survive the termination of the Operative Agreements
and the payment of all other amounts payable hereunder.
11.5 Additional Provisions Regarding Indemnification.
Notwithstanding the provisions of Sections 11.1, 11.2 and 11.4, the
Owner Trustee shall be the only beneficiary of the provisions set forth in
Sections 11.1, 11.2 and 11.4 with respect to each Property solely for the period
prior to the earlier to occur of the applicable Completion Date or Construction
Period Termination Date for such Property, as applicable. After the earlier to
occur of the applicable Completion Date or Construction Period Termination Date
for such Property, as applicable, each Indemnified Person shall be a beneficiary
of the provisions set forth in Sections 11.1, 11.2 and 11.4.
To the extent the Indemnity Provider is not obligated to indemnify each
Indemnified Person with respect to the various matters described in this Section
11.5, the Owner Trustee shall provide such indemnities in favor of each
Indemnified Person in accordance with the provisions of this Section 11.5.
Whether or not any of the transactions contemplated hereby shall be consummated,
the Owner Trustee hereby assumes liability for and agrees to defend, indemnify
and hold harmless each Indemnified Person on an After Tax Basis from and against
any Claims, which may be imposed on, incurred by or asserted against an
Indemnified Person by any third party, including without limitation Claims
arising from the negligence of an Indemnified Person in any way relating to or
arising or alleged to arise out of the execution, delivery, performance or
34
enforcement of this Agreement, the Lease or any other Operative Agreement or on
or with respect to any Property or any component thereof.
The Owner Trustee shall pay and assume liability for, and does hereby
agree to indemnify, protect and defend each Property and all Indemnified
Persons, and hold them harmless against, all Impositions on an After Tax Basis,
and all payments pursuant to the Operative Agreements shall be made free and
clear of and without deduction for any and all present and future Impositions.
Notwithstanding anything to the contrary in this paragraph, the Excluded Taxes
shall be excluded from the indemnity provisions afforded by this paragraph.
THE INDEMNITY OBLIGATIONS UNDERTAKEN BY THE OWNER TRUSTEE PURSUANT TO
THIS SECTION 11.5 ARE IN ALL RESPECTS SUBJECT TO THE LIMITATIONS ON LIABILITY
REFERENCED IN SECTION 12.9.
SECTION 12. MISCELLANEOUS.
12.1 Survival of Agreements.
The representations, warranties, covenants, indemnities and agreements
of the parties provided for in the Operative Agreements, and the parties'
obligations under any and all thereof, shall survive the execution and delivery
of this Agreement, the transfer of any Property to the Owner Trustee, the
acquisition of any Property (or any of its components), the construction of any
Improvements, the Completion of any Property, any disposition of any interest of
the Owner Trustee in any Property or any interest of the Bank in the Trust
Estate, the payment of the Notes and any disposition thereof and shall be and
continue in effect notwithstanding any investigation made by any party and the
fact that any party may waive compliance with any of the other terms, provisions
or conditions of any of the Operative Agreements. Except as otherwise expressly
set forth herein or in other Operative Agreements, the indemnities of the
parties provided for in the Operative Agreements shall survive the expiration or
termination of any thereof.
12.2 Notices.
All notices required or permitted to be given under any Operative
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
by telex, facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when presented for delivery notwithstanding such refusal.
Telex or telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the following
addresses:
35
If to the Construction Agent or the Lessee, to such entity at
the following address:
Dollar Tree Distribution, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Guarantor, to such entity in care of Xxxxxxxxx X.
Xxxxx at the following address:
Dollar Tree Stores, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Owner Trustee, to it at the following address:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Bank, to it at the following address:
First Union National Bank
c/o First Union Capital Markets Group
DC 6
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxx Xxxxxx,
Capital Markets Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
From time to time any party may designate additional parties
and/or another address for notice purposes by notice to each of the
other parties hereto. Each notice hereunder shall be effective upon
receipt or refusal thereof.
36
12.3 Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one (1) and the same
instrument.
12.4 Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters.
Each Basic Document may be terminated, amended, supplemented, waived or
modified only by an instrument in writing signed by, subject to Article VIII of
the Trust Agreement regarding termination of the Trust Agreement, the Bank, the
Owner Trustee and each Credit Party (to the extent such Credit Party is a party
to such Basic Document); provided, to the extent no Default or Event of Default
shall have occurred and be continuing, the Bank shall not amend, supplement,
waive or modify any provision of any Basic Document in such a manner as to
adversely affect the rights of any Credit Party without the prior written
consent (not to be unreasonably withheld or delayed) of such Credit Party. Each
Operative Agreement which is not a Basic Document may be terminated, amended,
supplemented, waived or modified only by an instrument in writing signed by the
parties thereto and the Bank.
12.5 Headings, etc.
The Table of Contents and headings of the various Articles and Sections
of this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
12.6 Parties in Interest.
Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto.
12.7 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; VENUE; ARBITRATION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
Any legal action or proceeding with respect to this Agreement or any
other Operative Agreement may be brought in the courts of the State of
NORTH CAROLINA located in MECKLENBURG County or of the United States
for the WESTERN District of NORTH CAROLINA, and, by execution and
delivery of this Agreement, each of the parties to this Agreement
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of such
courts. The parties shall serve process in accordance with applicable
laws. Nothing herein shall affect the right of any party to commence
legal proceedings or to otherwise proceed against any party in any
other jurisdiction.
37
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO ANY
DISPUTE OR THIS AGREEMENT, ANY OTHER OPERATIVE AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of
or in connection with this Agreement or any other Operative Agreement
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(d) Notwithstanding the provisions of Section 12.7(a) or of
any other Operative Agreement to the contrary, upon demand of any party to this
Agreement and/or any other Operative Agreement, upon demand of any party hereto,
whether made before or after institution of any judicial proceeding, any claim
or controversy arising out of, or relating to the Operative Agreements between
or among the parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act; provided, that any
demand for arbitration pursuant to this Section 12.7 shall be made no later than
30 days after service of process in any legal action or proceeding brought
pursuant to Section 12.7(a). Disputes may include without limitation tort
claims, counterclaims, disputes as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from documents
executed in the future. A judgment upon the award may be entered in any court
having jurisdiction. Notwithstanding the foregoing, this arbitration provision
does not apply to disputes under or related to swap agreements.
All arbitration hearings shall be conducted in the city in which the
office of the Bank (referenced pursuant to Section 12.2 of this Agreement) is
located. A hearing shall begin within ninety (90) days of demand for arbitration
and all hearings shall be concluded within one hundred and twenty (120) days of
demand for arbitration. These time limitations may not be extended unless a
party shows cause for extension and then for no more than a total of sixty (60)
days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000. Arbitrators shall
be licensed attorneys selected from the Commercial Financial Dispute Arbitration
Panel of the AAA. The parties do not waive applicable federal or state
substantive law except as provided herein.
Notwithstanding the preceding binding arbitration provisions, the
parties agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. The parties
shall have the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm
38
the sale; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceedings; and (iv) when applicable, a
judgment by confession of judgment. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute.
Each party to this Agreement agrees that it shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and hereby
waives any right or claim to punitive or exemplary damages they have now or
which may arise in the future in connection with any Dispute, whether the
Dispute is resolved by arbitration or judicially.
12.8 Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.9 Liability Limited.
(a) The Bank, the Credit Parties and the Owner Trustee each
acknowledge and agree that the Owner Trustee is (except as otherwise
expressly provided herein or therein) entering into this Agreement and
the other Operative Agreements to which it is a party (other than the
Trust Agreement and to the extent otherwise provided in Section 6.1 of
this Agreement), solely in its capacity as trustee under the Trust
Agreement and not in its individual capacity and that the Trust Company
shall not be liable or accountable under any circumstances whatsoever
in its individual capacity for or on account of any statements,
representations, warranties, covenants or obligations stated to be
those of the Owner Trustee, except for its own gross negligence or
willful misconduct and as otherwise expressly provided herein or in the
other Operative Agreements.
(b) Anything to the contrary contained in this Agreement, the
Credit Agreement, the Notes or in any other Operative Agreement
notwithstanding, no Exculpated Person shall be personally liable in any
respect for any liability or obligation arising hereunder or in any
other Operative Agreement including without limitation the payment of
the principal of, or interest on, the Notes, or for monetary damages
for the breach of performance of any of the covenants contained in the
Credit Agreement, the Notes, this Agreement, the Security Agreement or
any of the other Operative Agreements. The Bank agrees that, in the
event any remedies under any Operative Agreement are pursued, the Bank
shall have no recourse against any Exculpated Person, for any
deficiency, loss or Claim for monetary damages or otherwise resulting
therefrom and recourse shall be had solely and exclusively against the
Trust Estate (excluding
39
Excepted Payments) and the Credit Parties (with respect to the Credit
Parties' obligations under the Operative Agreements); but nothing
contained herein shall be taken to prevent recourse against or the
enforcement of remedies against the Trust Estate (excluding Excepted
Payments) in respect of any and all liabilities, obligations and
undertakings contained herein and/or in any other Operative Agreement.
Notwithstanding the provisions of this Section, nothing in any
Operative Agreement shall: (i)constitute a waiver, release or discharge
of any indebtedness or obligation evidenced by the Notes and/or the
Certificates arising under any Operative Agreement or secured by any
Operative Agreement, but the same shall continue until paid or
discharged; (ii) relieve any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by
reason of): active waste knowingly committed by any Exculpated Person
with respect to any Property, any fraud, gross negligence or willful
misconduct on the part of any Exculpated Person; (iii) relieve any
Exculpated Person from liability and responsibility for (but only to
the extent of the moneys misappropriated, misapplied or not turned
over) (A) except for Excepted Payments, misappropriation or
misapplication by the Lessor (i.e., application in a manner contrary
to any of the Operative Agreements) of any insurance proceeds or
condemnation award paid or delivered to the Lessor by any Person other
than the Bank, (B) except for Excepted Payments, any deposits or any
escrows or amounts owed by the Construction Agent under the Agency
Agreement held by the Lessor or (C) except for Excepted Payments, any
rent or other income received by the Lessor from any Credit Party that
is not turned over to the Bank; or (iv) affect or in any way limit the
Bank's rights and remedies under any Operative Agreement with respect
to the Rents and rights and powers of the Bank under the Operative
Agreements or to obtain a judgment against the Lessee's interest in the
Properties or the Bank's rights and powers to obtain a judgment against
the Lessor or any Credit Party (provided, that no deficiency judgment
or other money judgment shall be enforced against any Exculpated Person
except to the extent of the Lessor's interest in the Trust Estate
(excluding Excepted Payments) or to the extent the Lessor may be liable
as otherwise contemplated in clauses (ii) and (iii) of this Section
12.9(b)).
12.10 Rights of the Credit Parties.
If at any time all obligations (i) of the Owner Trustee under the
Credit Agreement, the Security Documents and the other Operative Agreements and
(ii) of the Credit Parties under the Operative Agreements have in each case been
satisfied or discharged in full, then the Credit Parties shall be entitled to
(a) terminate the Lease and guaranty obligations under Section 6B and (b)
receive all amounts then held under the Operative Agreements and all proceeds
with respect to any of the Properties. Upon the termination of the Lease and
Section 6B pursuant to the foregoing clause (a), the Lessor shall transfer to
the Lessee all of its right, title and interest free and clear of the Lien of
the Lease, the Lien of the Security Documents and all Lessor Liens in and to any
Properties then subject to the Lease and any amounts or proceeds referred to in
the foregoing clause (b) shall be paid over to the Lessee.
40
12.11 Further Assurances.
The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such further
acts, conveyances, documents and assurances as the other parties may from time
to time reasonably request in order to carry out and effectuate the intent and
purposes of this Participation Agreement, the other Operative Agreements and the
transactions contemplated hereby and thereby (including without limitation the
preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filings of Mortgage Instruments and other filings or
registrations which the parties hereto may from time to time request to be filed
or effected). The Lessee, at its own expense and without need of any prior
request from any other party, shall take such action as may be necessary
(including without limitation any action specified in the preceding sentence),
or (if the Owner Trustee shall so request) as so requested, in order to maintain
and protect all security interests provided for hereunder or under any other
Operative Agreement. In addition, in connection with the sale or other
disposition of any Property or any portion thereof, the Lessee agrees to execute
such instruments of conveyance as reasonably required in connection therewith.
12.12 Calculations under Operative Agreements.
The parties hereto agree that all calculations and numerical
determinations to be made under the Operative Agreements by the Owner Trustee
shall be made by the Bank and that such calculations and determinations shall be
conclusive and binding on the parties hereto in the absence of manifest error.
12.13 [Intentionally Left Blank].
12.14 Financial Reporting/Tax Characterization.
Lessee agrees to obtain advice from its own accountants and tax counsel
regarding the financial reporting treatment and the tax characterization of the
transactions described in the Operative Agreements. Lessee further agrees that
Lessee shall not rely upon any statement of any Financing Party or any of their
respective Affiliates and/or Subsidiaries regarding any such financial reporting
treatment and/or tax characterization.
[signature pages follow]
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CONSTRUCTION AGENT
AND LESSEE:
DOLLAR TREE DISTRIBUTION, INC.,
a Virginia corporation, as the Construction
Agent and the Lessee
By:/s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Sr. V.P.
GUARANTORS:
DOLLAR TREE STORES, INC.,
a Virginia corporation
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Sr. V.P.
DOLLAR TREE MANAGEMENT, INC.,
a Virginia corporation
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Sr. V.P.
[Signatures continued on next page]
OWNER TRUSTEE AND
LESSOR:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, except as
expressly stated herein,
but solely as the Owner
Trustee under the DTSD
Realty Trust 1991-1
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
[Signatures continued on next page]
BANK:
FIRST UNION NATIONAL BANK, a national
banking association, as Lender and Holder
By: /s/ Xxxxxx XxXxxxxxxx
Name: Xxxxxx XxXxxxxxxx
Title: Vice President
[Signatures end]
EXHIBIT A
REQUISITION FORM
(Pursuant to Sections 4.2, 5.2, 5.3 and 5.4 of the Participation Agreement)
DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation (the "Company")
hereby certifies as true and correct and delivers the following Requisition to
FIRST UNION NATIONAL BANK, as lender and holder ("Bank"):
Reference is made herein to that certain Participation Agreement dated
as of June 2, 1999 (as amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Participation Agreement") among the
Company, in its capacity as the Lessee and as the Construction Agent, the
various parties thereto from time to time, as the guarantors (the "Guarantors"),
First Security Bank, National Association, as the Owner Trustee and the Bank.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings set forth therefor in the Participation Agreement.
Check one:
____ INITIAL CLOSING DATE: _________________
(three (3) Business Days prior notice required for Advance)
____ PROPERTY CLOSING DATE: _________________
(three (3) Business Days prior notice required for Advance)
____ CONSTRUCTION ADVANCE DATE: _____________
(three (3) Business Days prior notice required for Advance)
1. Transaction Expenses and other fees, expenses and disbursements under
Section 7 of the Participation Agreement and any and all other amounts
contemplated to be financed under the participation Agreement including
without limitation any Work, broker's fees, taxes, recording fees and the
like (with supporting invoices or closing statement attached):
Party to Whom Amount Owed
Amount is Owed (in U.S. Dollars)
------------- ------------
------------- ------------
------------- ------------
------------- ------------
------------- ------------
A-1
2. Description of Land (which shall be a legal description of the Land in
connection with an Advance to pay Property Acquisition Costs): See attached
Schedule 1
3. Description of Improvements: See attached Schedule 2
4. Description of Equipment: See attached Schedule 3
5. Description of Work: See attached Schedule 4
6. Aggregate Loans and Holder Advances requested since the Initial Closing
Date with respect to each Property for which Advances are requested under
this Requisition (listed on a Property by Property basis), including without
limitation all amounts requested under this Requisition: [identify on a
Property by Property basis]
$______________ [Property]
In connection with this Requisition, the Company hereby requests that
the Bank make Loans to the Lessor in the amount of $______________ and that the
Bank make Holder Advances to the Lessor in the amount of $________________. The
Company hereby certifies (i) that the foregoing amounts requested do not exceed
the total aggregate of the Available Commitments plus the Available Holder
Commitments and (ii) each of the provisions of the Participation Agreement
applicable to the Loans and Holder Advances requested hereunder have been
complied with as of the date of this Requisition.
The Company requests the Loans be allocated as follows:
$______________ ABR Loans
$______________ Eurodollar Loans
The Company requests the Holder Advances be allocated as follows:
$______________ ABR Holder Advances
$______________ Eurodollar Holder Advances
A-2
The Company has caused this Requisition to the executed by its duly
authorized officer as of this _____ day of __________, ______.
DOLLAR TREE DISTRIBUTION, INC.
By:
Name:
Title:
X-0
Xxxxxxxx 0
Xxxxxxxxxxx xx Xxxx
(Xxxxx Description and Street Address)
A-4
Schedule 2
Description of Improvements
A-5
Schedule 3
Description of Equipment
General Description
A-6
Schedule 4
Work
Work Performed for which the Advance is requested:
A-7
EXHIBIT B
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(j) of the
Participation Agreement)
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of Dollar Tree
Distribution, Inc.
Dear Sirs:
We have acted as special counsel to Dollar Tree Distribution, Inc., a Virginia
corporation (the "Lessee") and the various parties thereto from time to time, as
guarantors (individually, a "Guarantor" and collectively, the "Guarantors";
individually, Lessee and each Guarantor may be referred to herein as a "Credit
Party" or collectively, as the "Credit Parties"), in connection with certain
transactions contemplated by the Participation Agreement dated as of June 2,
1999 (the "Participation Agreement"), among the Lessee, First Security Bank,
National Association, as the Owner Trustee (the "Owner Trustee"), and First
Union National Bank, as lender and holder ("First Union" or "Bank"). This
opinion is delivered pursuant to Section 5.3(j) of the Participation Agreement.
All capitalized terms used herein, and not otherwise defined herein, shall have
the meanings assigned thereto in Appendix A to the Participation Agreement.
In connection with the foregoing, we have examined originals, or copies
certified to our satisfaction, of [identify the applicable Operative Agreements,
including each Mortgage Instrument, related UCC fixture filings, Additional UCCs
(hereinafter defined), Deeds and Memoranda of Lease] and such other corporate
documents and records of the Credit Parties, certificates of public officials
and representatives of the Credit Parties as to certain factual matters, and
such other instruments and documents which we have deemed necessary or advisable
to examine for the purpose of this opinion. With respect to such examination, we
have assumed (i) the statements of fact made in all such certificates, documents
and instruments are true, accurate and complete; (ii) the due authorization,
execution and delivery of the Operative Agreements by the parties thereto; (iii)
the genuineness of all signatures, the authenticity and completeness of all
documents, certificates, instruments, records and corporate records submitted to
us as originals and the conformity to the original instruments of all documents
submitted to us as copies, and the authenticity and completeness of the
originals of such copies; (iv) that all parties have all requisite corporate
power and authority to execute, deliver and perform the Operative Agreements;
and (v) except as to the Credit Parties, the enforceability of the Mortgage
Instrument, the Memorandum of Lease and the UCC financing statements against all
parties thereto.
B-1
Based on the foregoing, and having due regard for such legal considerations as
we deem relevant, and subject to the limitations and assumptions set forth
herein, including without limitation the matters set forth in the last two (2)
paragraphs hereof, we are of the opinion that:
(a) The Mortgage Instrument and Memorandum of Lease are enforceable in
accordance with their respective terms, except as limited by laws generally
affecting the enforcement of creditors' rights, which laws will not materially
prevent the realization of the benefits intended by such documents.
(b) Each form of Mortgage Instrument and UCC fixture filing relating
thereto, attached hereto as Schedules 1 and 2, respectively, is in proper form
for filing and recording with the offices of [identify the recording offices of
the respective county clerks where the Properties are to be located]. Upon
filing of each Mortgage Instrument and UCC fixture filing in [identify the
recording offices of the respective county clerks where the Properties are to be
located], Bank will have a valid, perfected lien and security interest in that
portion of the Collateral described in such Mortgage Instrument or UCC fixture
filing to the extent such Collateral is comprised of real property and/or
fixtures.
(c) The forms of UCC financing statements relating to the Security
Documents, attached hereto as Schedule 3 (the "Additional UCCs"), are in proper
form for filing and recording with the offices of [identify (i) the recording
offices of the respective county clerks where the Properties are to be located
and (ii) the Secretary of State where the Properties are to be located]. Upon
filing of the Additional UCCs in [identify (i) the recording offices of the
respective county clerks where the Properties are to be located and (ii) the
Secretary of State where the Properties are to be located], Bank will have a
valid, perfected lien and security interest in that portion of the Collateral
which can be perfected by filing UCC-1 financing statements under Article 9 of
the UCC.
(d) Each form of Deed and Memorandum of Lease is in appropriate form
for filing and recording with the [identify the recording offices of the
respective county clerks for the counties where the Properties are to be
located].
(e) Each Memorandum of Lease, when filed and recorded with the
[identify the recording offices of the respective county clerks for the counties
where the Properties are to be located], will have been filed and recorded in
all public offices in the State of [__________] in which filing or recording is
necessary to provide constructive notice of the Lease to third Persons and to
establish of record the interest of the Lessor thereunder as to the Properties
described in each such Memorandum of Lease.
(f) Title to the Properties located in the State of [___________] may
be held in the name of the Owner Trustee as follows: First Security Bank,
National Association, not individually, but solely as the Owner Trustee under
the DTSD Realty Trust 1999-1.
B-2
(g) The execution and delivery by First Security Bank, National
Association, individually or as the Owner Trustee, as the case may be, of the
Operative Agreements to which it is a party and compliance by First Security
Bank, National Association, individually or as the Owner Trustee, with all of
the provisions thereof do not and will not contravene any law, rule or
regulation of [identify the state].
(h) By reason of their participation in the transaction contemplated
under the Operative Agreements, neither Bank nor the Owner Trustee has to (a)
qualify as a foreign corporation in [identify the state], (b) file any
application or any designation for service of process in [identify the state] or
(c) pay any franchise, income, sales, excise, stamp or other taxes of any kind
to [identify the state].
(i) The provisions in the Operative Agreements concerning Rent,
interest, fees, prepayment premiums and other similar charges do not violate the
usury laws or other similar laws regulating the use or forbearance of money of
[identify the state].
(j) If the transactions contemplated by the Operative Agreements are
characterized as a lease transaction by a court of competent jurisdiction, the
Lease and the applicable Lease Supplement shall demise to the Lessee a valid
leasehold interest in the Properties described in such Lease Supplement.
(k) If the transactions contemplated by the Operative Agreements are
characterized as a loan transaction by a court of competent jurisdiction, the
combination of the Mortgage Instruments, the Deeds, the Lease and the applicable
Lease Supplements (and the other Operative Agreements incorporated therein by
reference) are sufficient to create a valid, perfected lien or security interest
in the Properties therein described, enforceable as a mortgage in [identify the
state].
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters stated herein. This opinion is based on
and is limited to the laws of the State of [___________] and the federal laws of
the United States of America. Insofar as the foregoing opinion relates to
matters of law other than the foregoing, no opinion is hereby given.
B-3
This opinion is for the sole benefit of the Lessee, the Construction Agent, the
Guarantors, the Owner Trustee, Bank and their respective successors and assigns
and may not be relied upon by any other person other than such parties and their
respective successors and assigns without the express written consent of the
undersigned. The opinions expressed herein are as of the date hereof and we make
no undertaking to amend or supplement such opinions if facts come to our
attention or changes in the current law of the jurisdictions mentioned herein
occur which could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
B-4
Distribution List
First Union National Bank, as Lender and Holder
Dollar Tree Distribution, Inc., as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the
Guarantors
First Security Bank, National Association, not individually, but solely as the
Owner Trustee under the DTSD Real Estate Trust 19991-1
B-5
Schedule 1
Form of Mortgage Instrument
B-6
Schedule 2
Forms of UCC Fixture Filings
B-7
Schedule 3
Forms of UCC Financing Statements
B-8
EXHIBIT C
DOLLAR TREE DISTRIBUTION, INC.
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(w) of the Participation Agreement)
DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation (the "Company"),
DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of each Credit
Party contained in the Operative Agreements to which it is a
party is true and correct in every material respect on and as
of the date hereof.
2. No Default or Event of Default has occurred and is continuing
under any Operative Agreement.
3. Each Operative Agreement to which any Credit Party is a party
is in full force and effect with respect to it.
4. Each Credit Party has duly performed and complied with all
covenants, agreements and conditions contained in the
Participation Agreement (hereinafter defined) or in any
Operative Agreement required to be performed or complied with
by it on or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise
defined herein have the respective meanings ascribed thereto in the
Participation Agreement dated as of June 2, 1999 among the Company, as the
Lessee and as the Construction Agent, the various parties thereto from time to
time, as guarantors (the "Guarantors"), First Security Bank, National
Association, as the Owner Trustee and First Union National Bank, as lender and
holder ("Bank").
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate
to be duly executed and delivered as of this _____ day of __________, ______.
DOLLAR TREE DISTRIBUTION, INC.
By:
Name:
Title:
C-1
EXHIBIT D
[NAME OF CREDIT PARTY]
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(x) of the Participation Agreement)
[NAME OF CREDIT PARTY], a ________________ corporation (the "Company")
DOES HEREBY CERTIFY as follows:
1. Attached hereto as Schedule 1 is a true, correct and complete
copy of the resolutions of the Board of Directors of the
Company duly adopted by the Board of Directors of the Company
on __________. Such resolutions have not been amended,
modified or rescinded since their date of adoption and remain
in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct and complete
copy of the Articles of Incorporation of the Company on file
in the Office of the Secretary of State of ___________. Such
Articles of Incorporation have not been amended, modified or
rescinded since their date of adoption and remain in full
force and effect as of the date hereof.
3. Attached hereto as Schedule 3 is a true, correct and complete
copy of the Bylaws of the Company. Such Bylaws have not been
amended, modified or rescinded since their date of adoption
and remain in full force and effect as of the date hereof.
4. The persons named below now hold the offices set forth
opposite their names, and the signatures opposite their names
and titles are their true and correct signatures.
Name Office Signature
------------------- ----------------------- -------------------------
------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, the Company has caused this Secretary's Certificate to be
duly executed and delivered as of this _____ day of ___________, ______.
[NAME OF CREDIT PARTY]
By:
Name:
Title:
D-1
Schedule 1
Board Resolutions
D-2
Schedule 2
Articles of Incorporation
X-0
Xxxxxxxx 0
Xxxxxx
X-0
EXHIBIT E
FIRST SECURITY BANK, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(z) of the Participation Agreement)
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (except with respect to paragraph 1 below, to the
extent any such representations and warranties are made in its individual
capacity) but solely as the owner trustee under the DTSD Realty Trust 1999-1
(the "Owner Trustee"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Owner
Trustee contained in the Operative Agreements to which it is a
party is true and correct on and as of the date hereof.
2. Each Operative Agreement to which the Owner Trustee is a party
is in full force and effect with respect to it.
3. The Owner Trustee has duly performed and complied with all
covenants, agreements and conditions contained in the
Participation Agreement (hereinafter defined) or in any
Operative Agreement required to be performed or complied with
by it on or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as of June 2, 1999 among Dollar Tree Distribution, Inc., as the
Lessee and as the Construction Agent, the various parties thereto from time to
time, as guarantors (the "Guarantors"), the Owner Trustee, and First Union
National Bank, as lender and holder ("Bank").
IN WITNESS WHEREOF, the Owner Trustee has caused this Officer's Certificate to
be duly executed and delivered as of this _____ day of __________, ______.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
individually, except as
expressly stated herein,
but solely as the Owner
Trustee under the DTSD
Realty Trust 1999-1
By:
Name:
Title:
E-1
EXHIBIT F
FIRST SECURITY BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(aa) of the Participation Agreement)
CERTIFICATE OF ASSISTANT SECRETARY
I, ______________________, duly elected and qualified Assistant
Secretary of the Board of Directors of First Security Bank, National Association
(the "Association"), hereby certify as follows:
1. The Association is a National Banking Association duly organized,
validly existing and in good standing under the laws of the United States. With
respect thereto the following is noted:
A. Pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1,
et seq., the Comptroller of the Currency charters and exercises
regulatory and supervisory authority over all National Banking
Associations;
B. On December 9, 1881, the First National Bank of Ogden, Utah was
chartered as a National Banking Association under the laws of the
United States and under Charter No. 2597;
C. On October 2, 1922, in connection with a consolidation of The First
National Bank of Ogden, Ogden, Utah, and The Utah National Bank of
Ogden, Ogden, Utah, the title was changed to "The First & Utah
National Bank of Ogden"; on January 18, 1923, The First & Utah
National Bank of Ogden changed its title to "First Utah National
Bank of Ogden"; on January 19,1926, the title was changed to "First
National Bank of Ogden"; on February 24, 1934, the title was changed
to "First Security Bank of Utah, National Association"; on June 21,
1996, the title was changed to "First Security Bank, National
Association"; and
D. First Security Bank, National Association, Ogden, Utah, continues to
hold a valid certificate to do business as a National Banking
Association.
2. The Association's Articles of Association, as amended, are in full
force and effect, and a true, correct and complete copy is attached hereto as
Schedule A and incorporated herein by reference. Said Articles were last amended
October 20, 1975, as required by law on notice at a duly called special meeting
of the shareholders of the Association.
F-1
3. The Association's By-Laws, as amended, are in full force and effect;
and a true, correct and complete copy is attached hereto as Schedule B and
incorporated herein by reference. Said By-Laws, still in full force and effect,
were adopted September 17, 1942, by resolution, after proper notice of
consideration and adoption of By-Laws was given to each and every shareholder,
at a regularly called meeting of the Board of Directors with a quorum present.
4. Pursuant to the authority vested in it by an Act of Congress
approved December 23, 1913 and known as the Federal Reserve Act, as amended, the
Federal Reserve Board (now the Board of Governors of the Federal Reserve System)
has granted to the Association now known as "First Security Bank, National
Association" of Ogden, Utah, the right to act, when not in contravention of
State or local law, as trustee, executor, administrator, registrar of stocks and
bonds, guardian of estates, assignee, receiver, committee of estates of
lunatics, or in any other fiduciary capacity in which State banks, trust
companies or other corporations which come into competition with National Banks
are permitted to act under the laws of the State of Utah; and under the
provisions of applicable law, the authority so granted remains in full force and
effect.
5. Pursuant to authority vested by Act of Congress (12 X.X.X. 00x xxx
00 X.X.X. 000, as amended) the Comptroller of the Currency has issued Regulation
9, as amended, dealing, in part, with the Fiduciary Powers of National Banks,
said regulation providing in subparagraph 9.7 (a) (1-2):
(1) The board of directors is responsible for the proper exercise
of fiduciary powers by the Bank. All matters pertinent
thereto, including the determination of policies, the
investment and disposition of property held in fiduciary
capacity, and the direction and review of the actions of all
officers, employees, and committees utilized by the Bank in
the exercise of its fiduciary powers, are the responsibility
of the board. In discharging this responsibility, the board of
directors may assign, by action duly entered in the minutes,
the administration of such of the Bank's fiduciary powers as
it may consider proper to assign to such director(s),
officer(s), employee(s) or committee(s) as it may designate.
(2) No fiduciary account shall be accepted without the prior
approval of the board, or of the director(s), officer(s), or
committee(s) to whom the board may have designated the
performance of that responsibility. . . .
6. A Resolution relating to Exercise of Fiduciary Powers was adopted by
the Board of Directors at a meeting held July 26, 1994 at which time there was a
quorum present; said resolution is still in full force and effect and has not
been rescinded. Said resolution is attached hereto as Schedule C and
incorporated herein by reference.
F-2
7. A Resolution relating to the Designation of Officers and Employees
to Exercise Fiduciary Powers was adopted by the Trust Policy Committee at a
meeting held February 7, 1996 at which time a quorum was present; said
resolution is still in full force and effect and has not been rescinded. Said
resolution is attached hereto as Schedule D and is incorporated herein by
reference.
8. Attached hereto as Schedule E and incorporated herein by reference,
is a listing of facsimile signatures of persons authorized (herein "Authorized
Signatory or Signatories") on behalf of the Association and its Trust Group to
act in exercise of its fiduciary powers subject to the resolutions in Paragraphs
6 and 7, above.
9. The principal office of the First Security Bank, National
Association, Trust Group and of its departments, except for the St. Xxxxxx,
Utah, Ogden, Utah, and Provo, Utah, branch offices, is located at 00 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 and all records relating to fiduciary
accounts are located at such principal office of the Trust Group or in storage
facilities within Salt Lake County, Utah, except for those of the Ogden, Utah,
St. Xxxxxx, Utah, and Provo, Utah, branch offices, which are located at said
office.
10. Each Authorized Signatory (i) is a duly elected or appointed, duly
qualified officer or employee of the Association; (ii) holds the office or job
title set forth below his or her name on the date hereof; (iii) and the
facsimile signature appearing opposite the name of each such officer or employee
is a true replica of his or her signature.
F-3
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Association this __________ day of ___________________, ______.
(SEAL)
----------------------------------------
R. Xxxxx Xxxxxxxxx
Senior Vice President
Assistant Secretary
F-4
Schedule A
Articles of Association
F-5
Schedule B
Bylaws
F-6
Schedule C
Resolution Relating to
Exercise of Fiduciary Powers
F-7
Schedule D
Resolution Relating to the
Designation of Officers and Employees
to Exercise Fiduciary Powers
F-8
Schedule E
Authorized Signatory or Signatories
F-9
EXHIBIT G
[Outside Counsel Opinion for the Owner Trustee]
(Pursuant to Section 5.3(bb) of the
Participation Agreement)
-----------, ------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Trust Agreement dated as of June 2, 1999
Dear Sirs:
We have acted as special counsel for First Security Bank, National
Association, a national banking association, in its individual capacity ("FSB")
and in its capacity as trustee (the "Owner Trustee") under the Trust Agreement
dated as of June 2, 1999 (the "Trust Agreement") by and among it and First Union
National Bank, as holder (the "Holder"), in connection with the execution and
delivery by the Owner Trustee of the Operative Agreements to which it is a
party. Except as otherwise defined herein, the terms used herein shall have the
meanings set forth in Appendix A to the Participation Agreement dated as of June
2, 1999 (the "Participation Agreement") by and among Dollar Tree Distribution,
Inc. (the "Lessee"), the various parties thereto from time to time, as
guarantors (the "Guarantors"), First Security Bank, National Association, as the
Owner Trustee and First Union National Bank, as lender and holder (in such
capacity, "Bank").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records and other instruments
as we have deemed necessary or advisable for the purpose of rendering this
opinion.
Based upon the foregoing, we are of the opinion that:
1. FSB is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America and
each of FSB and the Owner Trustee has under the laws of the State of Utah and
federal banking law the power and authority to enter into and perform its
obligations under the Trust Agreement and each other Operative Agreement to
which it is a party.
2. The Owner Trustee is the duly appointed trustee under the Trust
Agreement.
3. The Trust Agreement has been duly authorized, executed and delivered
by one (1) of the officers of FSB and, assuming due authorization, execution and
delivery by the Holder, is a legal, valid and binding obligation of the Owner
Trustee (and to the extent set forth therein, against FSB), enforceable against
the Owner Trustee (and to the extent set forth therein,
G-1
against FSB) in accordance with its terms, and the Trust Agreement creates under
the laws of the State of Utah for the Holder the beneficial interest in the
Trust Estate it purports to create and is a valid trust under the laws of the
State of Utah.
4. The Operative Agreements to which it is party have been duly
authorized, executed and delivered by FSB, and, assuming due authorization,
execution and delivery by the other parties thereto, are legal, valid and
binding obligations of FSB, enforceable against FSB in accordance with their
respective terms.
5. The Operative Agreements to which it is party have been duly
authorized, executed and delivered by the Owner Trustee, and, assuming due
authorization, execution and delivery by the other parties thereto, are legal,
valid and binding obligations of the Owner Trustee, enforceable against the
Owner Trustee in accordance with their respective terms. The Notes and
Certificates have been duly issued, executed and delivered by the Owner Trustee,
pursuant to authorization contained in the Trust Agreement, and the Certificates
are entitled to the benefits and security afforded by the Trust Agreement in
accordance with its terms and the terms of the Trust Agreement.
6. The execution and delivery by each of FSB and the Owner Trustee of
the Trust Agreement and the Operative Agreements to which it is a party, and
compliance by FSB or the Owner Trustee, as the case may be, with all of the
provisions thereof do not and will not contravene any Laws applicable to or
binding on FSB, or as the Owner Trustee, or contravene the provisions of, or
constitute a default under, its charter documents or by-laws or, to our
knowledge after due inquiry, any indenture, mortgage contract or other agreement
or instrument to which FSB or Owner Trustee is a party or by which it or any of
its property may be bound or affected.
7. The execution and delivery of the Operative Agreements by each of
FSB and the Owner Trustee and the performance by each of FSB and the Owner
Trustee of their respective obligations thereunder does not require on or prior
to the date hereof the consent or approval of, the giving of notice to, the
registration or filing with, or the taking of any action in respect of any
Governmental Authority or any court.
8. Assuming that the trust created by the Trust Agreement is treated as
a grantor trust for federal income tax purposes within the contemplation of
Section 671 through 678 of the Internal Revenue Code of 1986, there are no fees,
taxes, or other charges (except taxes imposed on fees payable to the Owner
Trustee) payable to the State of Utah or any political subdivision thereof in
connection with the execution, delivery or performance by the Owner Trustee or
the Bank, as the case may be, of the Operative Agreements or in connection with
the acquisition of any Property by the Owner Trustee or in connection with the
making by the Holder of its investment in the Trust or its acquisition of the
beneficial interest in the Trust Estate or in connection with the issuance and
acquisition of the Certificates, or the Notes, and neither the Owner Trustee,
the Trust Estate nor the trust created by the Trust Agreement will be subject to
any fee, tax or other governmental charge (except taxes on fees payable to the
Owner Trustee)
G-2
under the laws of the State of Utah or any political subdivision thereof on,
based on or measured by, directly or indirectly, the gross receipts, net income
or value of the Trust Estate by reason of the creation or continued existence of
the trust under the terms of the Trust Agreement pursuant to the laws of the
State of Utah or the Owner Trustee's performance of its duties under the Trust
Agreement.
9. There is no fee, tax or other governmental charge under the laws of
the State of Utah or any political subdivision thereof in existence on the date
hereof on, based on or measured by any payments under the Certificates, Notes or
the beneficial interest in the Trust Estate, by reason of the creation of the
trust under the Trust Agreement pursuant to the laws of the State of Utah or the
Owner Trustee's performance of its duties under the Trust Agreement within the
State of Utah.
10. Upon the filing of the financing statement on form UCC-1 in the
form attached hereto as Schedule 1 with the Utah Division of Corporation and
Commercial Code, the Bank's security interest in the Trust Estate will be
perfected, to the extent that such perfection is governed by Article 9 of the
Uniform Commercial Code as in effect in the State of Utah (the "Utah UCC").
Your attention is directed to the Utah UCC, which provides, in part,
that a filed financing statement which does not state a maturity date or which
states a maturity date of more than five (5) years is effective only for a
period of five (5) years from the date of filing, unless within six (6) months
prior to the expiration of said period a continuation statement is filed in the
same office or offices in which the original statement was filed. The
continuation statement must be signed by the secured party, identify the
original statement by file number and state that the original statement is still
effective. Upon the timely filing of a continuation statement, the effectiveness
of the original financing statement is continued for five (5) years after the
last date to which the original statement was effective. Succeeding continuation
statements may be filed in the same manner to continue the effectiveness of the
original statement.
The foregoing opinions are subject to the following assumptions, exceptions and
qualifications:
A. We are attorneys admitted to practice in the State of Utah and in
rendering the foregoing opinions we have not passed upon, or purported to pass
upon, the laws of any jurisdictions other than the State of Utah and the federal
banking law governing the banking and trust powers of FSB. In addition, without
limiting the foregoing we express no opinion with respect to (i) federal
securities laws, including the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of
1939, as amended, (ii) the Federal Aviation Act of 1958, as amended, (iii) the
Federal Communications Act of 1934, as amended, or (iv) state securities or blue
sky laws. Insofar as the foregoing opinions relate to the legality, validity,
binding effect and enforceability of the documents involved in these
transactions, which by their terms are governed by the laws of a state other
than Utah, we have assumed that the laws of such state (as to which we express
no opinion), are in all material aspects identical to the laws of the State of
Utah.
G-3
B. The opinions set forth in paragraphs 3, 4, and 5 above are subject
to the qualification that enforceability of the Trust Agreement and the other
Operative Agreements to which FSB and the Owner Trustee are parties, in
accordance with their respective terms, may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, receivership or similar laws affecting
enforcement of creditors' rights generally, and (ii) general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
C. As to the documents involved in these transactions, we have assumed
that each is a legal, valid and binding obligation of each party thereto, other
than FSB or the Owner Trustee, and is enforceable against each such party in
accordance with their respective terms.
D. We have assumed that all signatures, other than those of the Owner
Trustee or FSB, on documents and instruments involved in these transactions are
genuine, that all documents and instruments submitted to us as originals are
authentic, and that all documents and instruments submitted to us as copies
conform with the originals, which facts we have not independently verified.
E. We do not purport to be experts in respect of, or express any
opinion concerning laws, rules or regulations applicable to the particular
nature of the equipment or property involved in these transactions.
F. We have made no investigation of, and we express no opinion
concerning, the nature of the title to any part of the equipment or property
involved in these transactions or the priority of any mortgage or security
interest.
G. We have assumed that the Participation Agreement and the
transactions contemplated thereby are not within the prohibitions of Section 406
of the Employee Retirement Income Security Act of 1974.
H. In addition to any other limitation by operation of law upon the
scope, meaning, or purpose of this opinion, the opinions expressed herein speak
only as of the date hereof. We have no obligation to advise the recipients of
this opinion (or any third party) and make no undertaking to amend or supplement
such opinions if facts come to our attention or changes in the current law of
the jurisdictions mentioned herein occur which could affect such opinions the
legal analysis, a legal conclusion or any information confirmation herein.
G-4
I. This opinion is for the sole benefit of the Lessee, the Construction
Agent, the Guarantors, the Owner Trustee, the Bank and their respective
successors and assigns in matters directly related to the Participation
Agreement or the transaction contemplated thereunder and may not be relied upon
by any other person other than such parties and their respective successors and
assigns without the express written consent of the undersigned. The opinions
expressed in this letter are limited to the matter set forth in this letter, and
no other opinions should be inferred beyond the matters expressly stated.
Very truly yours,
RAY, XXXXXXX & XXXXXXX
M. Xxxx Xxxxxx
G-5
SCHEDULE I
[Form of UCC-1 Financing Statement]
G-6
Distribution List
First Union National Bank, as lender and holder
Dollar Tree Distribution, Inc., as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the
Guarantors
First Security Bank, National Association, not individually, but solely as the
Owner Trustee under the DTSD Realty Trust 1999-1
G-7
EXHIBIT H
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(cc) of the Participation Agreement)
---------------,------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of Dollar Tree
Distribution, Inc.
Dear Sirs:
We have acted as special counsel to Dollar Tree Distribution, Inc., a Virginia
corporation (the "Lessee") and the Guarantors (hereinafter defined) in
connection with certain transactions contemplated by the Participation Agreement
dated as of June 2, 1999 (the "Participation Agreement"), among the Lessee, the
various parties thereto from time to time, as guarantors (the "Guarantors"),
First Security Bank, National Association, as the Owner Trustee (the "Owner
Trustee"), and First Union National Bank, as lender and holder ("Bank"). This
opinion is delivered pursuant to Section 5.3(cc) of the Participation Agreement.
All capitalized terms used herein, and not otherwise defined herein, shall have
the meanings assigned thereto in Appendix A to the Participation Agreement.
In connection with the foregoing, we have examined originals, or copies
certified to our satisfaction, of the Operative Agreements, and such other
corporate, partnership or limited liability company documents and records of the
Credit Parties, certificates of public officials and representatives of the
Credit Parties as to certain factual matters, and such other instruments and
documents which we have deemed necessary or advisable to examine for the purpose
of this opinion. With respect to such examination, we have assumed (i) the
statements of fact made in all such certificates, documents and instruments are
true, accurate and complete; (ii) the due authorization, execution and delivery
of the Operative Agreements by the parties thereto other than the Credit
Parties; (iii) the genuineness of all signatures (other than the signatures of
persons signing on behalf of the Credit Parties), the authenticity and
completeness of all documents, certificates, instruments, records and corporate
records submitted to us as originals and the conformity to the original
instruments of all documents submitted to us as copies, and the authenticity and
completeness of the originals of such copies; (iv) that all parties other than
the Credit Parties have all requisite corporate power and authority to execute,
deliver and perform the Operative Agreements; and (v) the enforceability of the
Operative Agreements against all parties thereto other than the Credit Parties
and respecting the opinion set forth below in section (i), First Security Bank,
National Association, individually or as the Owner Trustee, as the case may be.
We have further assumed that the laws of the States of [state of lawyer's
admission] and [governing law of Participation Agreement] are substantively
identical.
H-1
Based on the foregoing, and having due regard for such legal considerations as
we deem relevant, and subject to the limitations and assumptions set forth
herein, including without limitation the matters set forth in the last two (2)
paragraphs hereof, we are of the opinion that:
(a) Each Credit Party is a [corporation, partnership or limited
liability company] duly [incorporated or organized], validly existing and in
good standing under the laws of the state of its [incorporation/formation] and
has the power and authority to conduct its business as presently conducted and
to execute, deliver and perform its obligations under the Operative Agreements
to which it is a party. Each Credit Party is duly qualified to do business in
all jurisdictions in which its failure to so qualify would materially impair its
ability to perform its obligations under the Operative Agreements to which it is
a party or its financial position or its business as now and now proposed to be
conducted.
(b) The execution, delivery and performance by each Credit Party of the
Operative Agreements to which it is a party have been duly authorized by all
necessary [corporate] action on the part of each Credit Party and the Operative
Agreements to which each Credit Party is a party have been duly executed and
delivered by each Credit Party.
(c) The Operative Agreements to which each Credit Party is a party
constitute valid and binding obligations of each Credit Party enforceable
against each Credit Party in accordance with the terms thereof, subject to
bankruptcy, insolvency, liquidation, reorganization, fraudulent conveyance, and
similar laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
(d) The execution and delivery by each Credit Party of the Operative
Agreements to which it is a party and compliance by each Credit Party with all
of the provisions thereof do not and will not (i) contravene the provisions of,
or result in any breach of or constitute any default under, or result in the
creation of any Lien (other than Permitted Liens and Lessor Liens) upon any of
its property under, its [Articles of Incorporation By-Laws, operating agreement,
partnership agreement or other similar document of formation] or any indenture,
mortgage, chattel mortgage, deed of trust, lease, conditional sales contract,
bank loan or credit agreement or other agreement or instrument to which any
Credit Party is a party or by which any Credit Party or any property of any
Credit Party may be bound or affected, or (ii) contravene any Laws or any order
of any Governmental Authority applicable to or binding on any Credit Party.
(e) No Governmental Action by, and no notice to or filing with, any
Governmental Authority is required for the due execution, delivery or
performance by any Credit Party of any of the Operative Agreements to which any
Credit Party is a party or for the acquisition, ownership, construction and
completion of the Properties, except for those which have been obtained.
(f) Except as set forth on Schedule 1 hereto, there are no actions,
suits or proceedings pending or to our knowledge, threatened against any Credit
Party in any court or before any
H-2
Governmental Authority, that concern the Properties or the interest of any
Credit Party therein or that question the validity or enforceability of any
Operative Agreement to which any Credit Party is a party or the overall
transaction described in the Operative Agreements to which any Credit Party is a
party.
(g) Neither the nature of the Properties, nor any relationship between
any Credit Party and any other Person, nor any circumstance in connection with
the execution, delivery and performance of the Operative Agreements to which any
Credit Party is a party is such as to require any approval of stockholders of,
or approval or consent of any trustee or holders of indebtedness of, any Credit
Party, except for such approvals and consents which have been duly obtained and
are in full force and effect.
(h) The Security Documents which have been executed and delivered as of
the date of this opinion create, for the benefit of Bank, the security interests
in the Collateral described therein which by their terms such Security Documents
purport to create. Upon filing of the UCC-1 financing statements (attached
hereto as Schedule 2) relating to the Security Documents in the recording
offices of (A) the respective county clerk where the principal place of business
of the Lessee is located and (B) the Secretary of State where the principal
place of business of the Lessee is located, Bank will have a valid, perfected
lien and security interest in that portion of the Collateral which can be
perfected by the filing of UCC-1 financing statements under Article 9 of the UCC
in [identify the state].
(i) [Reserved].
(j) The issuance, sale and delivery of the Notes and the issuance and
delivery of the Certificates under the circumstances contemplated by the
Participation Agreement do not, under existing law, require registration of the
Notes or the Certificates being issued on the date hereof under the Securities
Act of 1933, as amended, or the qualification of the Loan Agreement under the
Trust Indenture Act of 1939, as amended.
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters stated herein. This opinion is based on
and is limited to the laws of the States of [__________], and the federal laws
of the United States of America. Insofar as the foregoing opinion relates to
matters of law other than the foregoing, no opinion is hereby given.
This opinion is for the sole benefit of the Lessee, the Construction Agent, the
Guarantors, the Owner Trustee, Bank and their respective successors and assigns
and may not be relied upon by any other person other than such parties and their
respective successors and assigns without the express written consent of the
undersigned. The opinions expressed herein are as of the date hereof and we make
no undertaking to amend or supplement such opinions if facts come to our
attention or changes in the current law of the jurisdictions mentioned herein
occur which could affect such opinions.
H-3
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
H-4
Distribution List
First Union National Bank, as lender and holder
Dollar Tree Distribution, Inc., as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the
Guarantors
First Security Bank, National Association, not individually, but solely as the
Owner Trustee under the DTSD Real Estate Trust 1999-1
H-5
Schedule 1
(Litigation)
H-6
Schedule 2
(UCC-1 Financing Statements)
H-7
EXHIBIT I
DOLLAR TREE DISTRIBUTION, INC.
OFFICER'S CERTIFICATE
(Pursuant to Section 5.5 of the Participation Agreement)
DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation (the "Company")
DOES HEREBY CERTIFY as follows:
1. The address for the subject Property is ___________________________________
_____________________________________.
2. The Completion Date for the construction of Improvements at the Property
occurred on ______________.
3. The aggregate Property Cost for the Property was $___________.
4. Attached hereto as Schedule 1 is the detailed, itemized documentation
supporting the asserted Property Cost figures.
5. All representations and warranties of the Company in each Operative
Agreement and in each certificate delivered pursuant thereto (including
without limitation the Incorporated Representations and Warranties) are
true and correct as of the Completion Date.
Capitalized terms used in this Officer's Certificate and not otherwise defined
have the respective meanings ascribed thereto in the Participation Agreement
dated as of June 2, 1999 among the Company, as the Lessee and as the
Construction Agent, the various parties thereto from time to time, as guarantors
(the "Guarantors"), First Security Bank, National Association, as the Owner
Trustee and First Union National Bank, as lender and holder.
[The remainder of this page has been intentionally left blank.]
I-1
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate
to be duly executed and delivered as of this ____ day of ______________, ______.
DOLLAR TREE DISTRIBUTION, INC.
By:
Name:
Title:
I-2
Schedule I
(Itemized Documentation in Support of Asserted Property Cost)
I-3
EXHIBIT J
JOINDER AGREEMENT
(Pursuant to Section 5.9(a) of the Participation Agreement)
THIS JOINDER AGREEMENT (as amended, modified, supplemented, restated
and/or replaced from time to time, the "Agreement"), dated as of _____________,
______, is by and between ___________________, a ___________ (the "Company"),
and FIRST UNION NATIONAL BANK, as lender and holder ("Bank"). Capitalized terms
not otherwise defined herein shall have the meanings set forth therefor in the
Participation Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Participation
Agreement") among Dollar Tree Distribution, Inc., the various parties thereto
from time to time, as the Guarantors, First Security Bank, National Association,
as the Owner Trustee under the DTSD Real Estate Trust 1999-1 and Bank.
The Company is a Domestic Subsidiary, and, consequently, the Credit
Parties are required by Section 8.3(n) of the Participation Agreement to cause
the Company to become a "Guarantor".
Accordingly, the Company hereby agrees as follows with Bank:
1. The Company hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Company will be deemed to be a party to the
Participation Agreement and a "Guarantor" for all purposes of the Participation
Agreement and all other Operative Agreements, and shall have all of the
obligations of a Guarantor under the Operative Agreements as if the Company had
executed the Participation Agreement. The Company hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Operative Agreements.
Without limiting the generality of the foregoing terms of this paragraph 1, the
Company hereby (i) jointly and severally together with the other Guarantors,
guarantees to each Financing Party, as provided in Sections 6B.1 through 6B.8 of
the Participation Agreement, the prompt payment and performance of the Company
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms
thereof.
2. THE COMPANY HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES TO THE
PROVISIONS OF SECTION 12.7 OF THE PARTICIPATION AGREEMENT, INCLUDING WITHOUT
LIMITATION THOSE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION,
WAIVER OF JURY TRIAL, VENUE AND ARBITRATION. THIS PROVISION HAS BEEN
SPECIFICALLY REVIEWED BY THE COMPANY.
3. The chief executive office and principal place of business of the
Company are located at the location(s) set forth on Schedule 1 attached hereto.
J-1
4. All notices and other communications to be delivered to the Company
shall be directed to [___________] at its address set forth in Section 12.2 of
the Participation Agreement or such other address as may be specified, in
accordance with the terms of the Participation Agreement, by [___________] from
time to time.
5. The Company hereby waives acceptance by the Financing Parties of the
guaranty by the Company under Sections 6B.1 through 6B.8 of the Participation
Agreement upon the execution of this Agreement by the Company.
6. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its authorized officers, and Bank has caused the same to be accepted
by its authorized officer, as of the day and year first above written.
[COMPANY]
By:
Name:
Title:
Acknowledged and accepted:
FIRST UNION NATIONAL BANK,
as lender and holder
By:
Name:
Title:
J-2
Schedule 1
[Chief Executive Office and
Principal Place of Business of the Company]
J-3
EXHIBIT K
DESCRIPTION OF MATERIAL LITIGATION
PURSUANT TO SECTION 6.2(d) OF THE PARTICIPATION AGREEMENT
There are no material actions, suits or proceedings pending or, to our
knowledge, threatened against any Credit Party in any court or before any
Governmental Authority except as set forth below:
In February, 1998, Dollar Tree Stores, Inc., received a report
that a customer, Xxxx Xxxxx, had been injured when the clasp on a
retractable dog leash broke. The general liability insurance carriers
for the Credit Parties (primary and umbrella) have been notified and
are expected to cover fully any compensatory damages for which any of
the Credit Parties may be liable. Xx. Xxxxx has retained an attorney
who has indicated she may seek punitive damages. Insurance against
punitive damages is generally not available in Florida. Dollar Tree
Stores, Inc., emphatically denies any liability for punitive damages
and will vigorously defend against any such claim. It is not possible
at this time to state whether an unfavorable outcome is either probable
or remote, since no suit has been filed.
On April 14, 1998, a former retail store employee named Xxxxxx
X. Xxxxxx filed a lawsuit in federal court in Chicago, Illinois against
Dollar Tree Stores, Inc., and one of its store managers, alleging
sexual harassment by the store manager, constructive discharge, and
intentional infliction of emotional distress. Xx. Xxxxxx is suing for
$3,000,000 in compensatory and punitive damages. Xx. Xxxxxx has alleged
the bulk of her damages are punitive. Dollar Tree Stores, Inc.,
emphatically denies Xx. Xxxxxx'x claims and is vigorously defending
itself in this matter. We are unable to state whether an unfavorable
outcome is either probable or remote, as the lawsuit has not reached a
stage where such a judgment may be made.
K-1
EXHIBIT L
[States of Incorporation/Formation and Principal Place of Business of Each
Guarantor]
(Pursuant to Section 6.2(i) of the Participation Agreement)
State of State of Principal
Guarantors Incorporation/Formation Place of Business
Dollar Tree Stores, Inc. Virginia Virginia
Dollar Tree Management, Inc. Virginia Virginia
L-1
EXHIBIT M
OFFICER'S COMPLIANCE CERTIFICATE
(Pursuant to Section 8.3(k) of the Participation Agreement)
The undersigned, on behalf of Dollar Tree Stores, Inc., a Virginia
corporation (the "Company"), hereby certifies to First Union National Bank, as
lender and holder ("Bank"), under the Participation Agreement dated as of June
2, 1999 (as amended, modified, supplemented, restated and/or replaced from time
to time, the "Participation Agreement") among Dollar Tree Distribution, Inc., in
its capacity as the Lessee and as the Construction Agent, the various parties
thereto from time to time, as the Guarantors, First Security Bank, National
Association, as the Owner Trustee and Bank, as follows:
1. This Certificate is delivered to you pursuant to Section 8.3(k) of
the Participation Agreement. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Participation Agreement.
2. I have reviewed the financial statements of the Company and its
Consolidated Subsidiaries dated as of ___________, ______ and for the fiscal
quarter then ended and such statements fairly present the financial condition of
the Company and its Consolidated Subsidiaries as of the dates indicated and the
results of its operations and cash flows for the period indicated.
3. I have reviewed the terms of the Operative Agreements and have made,
or caused to be made under my supervision, a review in reasonable detail of the
transactions and the condition of the Company and its Consolidated Subsidiaries
during the accounting period covered by the financial statements referred to in
Paragraph 2 above. Such review has not disclosed the existence during or at the
end of such accounting period of any condition or event that constitutes a
Default or Event of Default, nor do I have any knowledge of the existence of any
such condition or event as at the date of this Certificate.
4. The ratio of Consolidated Funded Debt to Consolidated EBITDA and
calculations determining such figure are set forth on the attached Schedule 1
and the Company and its Consolidated Subsidiaries are in compliance with the
covenants referenced in Section 28.1 of the Lease and the covenants contained in
Section 9 of the Lessee Credit Agreement as shown on such Schedule 1 and the
Company and its Consolidated Subsidiaries are in compliance with the other
covenants and restrictions referenced in Section 28.1 of the Lease and contained
in Sections 7, 8 and 9 of the Lessee Credit Agreement.
M-1
WITNESS the following signature as of the ______ day of ___________,
______.
DOLLAR TREE STORES, INC.
By:
Name:
Title:
M-2
Schedule 1
to
Officer's Compliance Certificate
[DATE]
M-3
Appendix A
Rules of Usage and Definitions
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and the Operative
Agreements (and each appendix, schedule, exhibit and annex to the foregoing)
unless otherwise required by the context or unless otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions set forth
herein or in any other document shall be equally applicable to the singular and
plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any document
to articles, sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits are references to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any
document are solely for convenience of reference and shall not constitute a part
of any such document nor shall they affect the meaning, construction or effect
of any provision thereof.
(d) References to any Person shall include such Person, its successors,
permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, reference to any agreement
means such agreement as amended, modified, extended, supplemented, restated
and/or replaced from time to time in accordance with the applicable provisions
thereof.
Appendix-1
(f) Except as otherwise expressly provided, references to any law
includes any amendment or modification to such law and any rules or regulations
issued thereunder or any law enacted in substitution or replacement therefor.
(g) When used in any document, words such as "hereunder", "hereto",
"hereof" and "herein" and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of the applicable document
and not to any particular article, section, subsection, paragraph or clause
thereof.
(h) References to "including" means including without limiting the
generality of any description preceding such term and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.
(i) Each of the parties to the Operative Agreements and their counsel
have reviewed and revised, or requested revisions to, the Operative Agreements,
and the usual rule of construction that any ambiguities are to be resolved
against the drafting party shall be inapplicable in the construction and
interpretation of the Operative Agreements and any amendments or exhibits
thereto.
(j) Capitalized terms used in any Operative Agreements which are not
defined in this Appendix A but are defined in another Operative Agreement shall
have the meaning so ascribed to such term in the applicable Operative Agreement.
II. Definitions
"AAA" shall have the meaning given to such term in Section 12.7(d) of
the Participation Agreement.
"ABR" shall mean, for any day, a rate per annum equal to the greater of
(a) the Prime Lending Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus one-half of one percent (0.5%). For
purposes hereof: "Prime Lending Rate" shall mean the rate announced by the Bank
from time to time as its prime lending rate as in effect from time to time. The
Prime Lending Rate is a reference rate and is one of several interest rate bases
used by the Bank and does not necessarily represent the lowest or most favorable
rate offered by the Bank actually charged to any customer. The Bank may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate. The Prime Lending Rate shall change automatically and
without notice from time to time as and when the prime lending rate of the Bank
changes. "Federal Funds Effective Rate" shall mean, 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
members or 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
Appendix-2
such transactions received by the Agent from three (3) Federal funds brokers of
recognized standing selected by it. Any change in the ABR due to a change in the
Prime Lending Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Lending
Rate or the Federal Funds Effective Rate, respectively.
"ABR Holder Advance" shall mean a Holder Advance bearing a Holder Yield
based on the ABR.
"ABR Loans" shall mean Loans the rate of interest applicable to which
is based upon the ABR.
"Acceleration" shall have the meaning given to such term in Section 6
of the Credit Agreement.
"Accounts" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Acquisition Advance" shall have the meaning given to such term in
Section 5.3 of the Participation Agreement.
"Acquisition Loan" shall mean any Loan made in connection with an
Acquisition Advance.
"Additional Incorporated Terms" shall have the meaning given to such
term in Section 28.1 of the Lease.
"Advance" shall mean a Construction Advance or an Acquisition Advance.
"Affiliate" shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person.
"After Tax Basis" shall mean, with respect to any payment to be
received, the amount of such payment increased so that, after deduction of the
amount of all taxes required to be paid by the recipient calculated at the then
maximum marginal rates generally applicable to Persons of the same type as the
recipients with respect to the receipt by the recipient of such amounts (less
any tax savings realized as a result of the payment of the indemnified amount),
such increased payment (as so reduced) is equal to the payment otherwise
required to be made.
"Agency Agreement" shall mean the Agency Agreement, dated on or about
the Initial Closing Date between the Construction Agent and the Lessor.
"Agency Agreement Event of Default" shall mean an "Event of Default" as
defined in Section 5.1 of the Agency Agreement.
Appendix-3
"Applicable Percentage" shall mean for Eurodollar Loans, Eurodollar
Holder Advances, ABR Loans and ABR Holder Advances and the appropriate
applicable percentages corresponding to the ratio of Consolidated Funded Debt to
Consolidated EBITDA in effect as of the most recent Calculation Date as shown
below:
Applicable
Applicable Percentage Applicable Applicable
Percentage for Percentage Percentage
for Eurodollar for for ABR
Pricing Ratio of Consolidated Funded Eurodollar Holder ABR Holder
Level Debt to Consolidated EBITDA Loans Advances Loans Advances
------------ --------------------------------- -------------- -------------- --------------- ------------
Level I Less than or equal to .75 to 1 0.50% 1.25% 0.00% 0.00%
Level II Less than or equal to 1.25 to
1, but greater than .75 to 1 0.60% 1.35% 0.00% 0.75%
Level III Greater than 1.25 to 1 1.05% 1.80% 0.00% 0.75%
The Applicable Percentage for Eurodollar Loans, Eurodollar Holder
Advances, ABR Loans and ABR Holder Advances shall, in each case, be determined
and adjusted quarterly based upon, and as of, the fifth (5th) Business Day after
the due date of the financial statements required to be delivered to the Bank
under Section 8.3(m)(ii) of the Participation Agreement, Section 7.4(b) of the
Lessee Credit Agreement and Section 28.1 of the Lease (each a "Calculation
Date"); provided, however, that (i) the initial Applicable Percentage, in each
case, shall be based on Pricing Level I (as shown above) and shall remain at
Pricing Level I until the occurrence of the Calculation Date relating to the
first fiscal quarter of the Lessee occurring in fiscal year 1999 and,
thereafter, the Pricing Level shall be determined by the then current ratio of
Consolidated Funded Debt to Consolidated EBITDA, and (ii) if the Lessee fails to
provide the written notice required by Section 8.3(k) of the Participation
Agreement to the Agent on or before the most recent Calculation Date, the
Applicable Percentage, in each case, from such Calculation Date shall be based
on Pricing Level III until such time that such written notice is provided
whereupon the Pricing Level shall be determined by the then current ratio of
Consolidated Funded Debt to Consolidated EBITDA as specified in such notice.
Each Applicable Percentage shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans, Eurodollar Holder Advances, ABR
Loans and ABR Holder Advances as well as any new Eurodollar Loans, Eurodollar
Holder Advances, ABR Loans and ABR Holder Advances made or issued.
"Appraisal" shall mean, with respect to any Property, an appraisal to
be delivered in connection with the Participation Agreement or in accordance
with the terms of the Lease, in each case prepared by a reputable appraiser
reasonably acceptable to the Agent, which in the judgment of counsel to the
Agent, complies with all of the provisions of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, the rules and regulations
adopted pursuant thereto, and all other applicable Legal Requirements and
otherwise satisfactory to the Bank.
Appendix-4
"Appraisal Procedure" shall have the meaning given such term in Section
22.4 of the Lease.
"Appurtenant Rights" shall mean (a) all agreements, easements, rights
of way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments and other rights and benefits at any time belonging or
pertaining to the Land underlying the Improvements or the Improvements,
including without limitation the use of any streets, ways, alleys, vaults or
strips of land adjoining, abutting, adjacent or contiguous to the Land and (b)
all permits, licenses and rights, whether or not of record, appurtenant to such
Land or the Improvements.
"Arbitration Rules" shall have the meaning given to such term in
Section 12.7(d) of the Participation Agreement.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in
the form attached to the Credit Agreement as Exhibit B.
"Available Commitment" shall mean an amount equal to the excess, if
any, of (a) the amount of the Commitment over (b) the aggregate principal amount
of all Loans made as of such date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Loans hereunder).
"Available Holder Commitments" shall mean an amount equal to the
excess, if any, of (a) the aggregate amount of the Holder Commitments over (b)
the aggregate amount of the Holder Advances made since the Initial Closing Date
after giving effect to Section 5.2(d) of the Participation Agreement (but
without giving effect to any other repayments or prepayments of any Holder
Advances).
"Bank" shall mean First Union National Bank, a national banking
association, and its permitted successors and assigns.
"Bankruptcy Code" shall mean Title 11 of the U. S. Code entitled
"Bankruptcy," as now or hereafter in effect or any successor thereto.
"Basic Documents" shall mean the following: the Participation Agreement
the Agency Agreement, the Trust Agreement, the Certificates, the Credit
Agreement, the Notes, the Lease and the Security Agreement.
"Basic Rent" shall mean, the sum of (a) the Loan Basic Rent and (b) the
Lessor Basic Rent, calculated as of the applicable date on which Basic Rent is
due.
"Xxxx of Sale" shall mean a Xxxx of Sale regarding Equipment in form
and substance satisfactory to the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
Appendix-5
"Borrower" shall mean the Owner Trustee, not in its individual capacity
but as Borrower under the Credit Agreement.
"Borrowing Date" shall mean any Business Day specified in a notice
delivered pursuant to Section 2.3 of the Credit Agreement as a date on which the
Lessor requests the Bank to make Loans hereunder.
"Budgeted Total Property Cost" shall mean, at any date of determination
with respect to any Construction Period Property, an amount equal to the
aggregate amount which the Construction Agent in good faith expects to be
expended in order to achieve Completion with respect to such Property.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in North Carolina, or any other states from which
the Bank funds or engages in administrative activities with respect to the
transactions under the Operative Agreements are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property (whether real, personal, tangible, intangible or mixed of such Person)
by such Person as the lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.
"Capital Stock" shall mean any nonredeemable capital stock of the
Lessee or any of its Subsidiaries, whether common or preferred.
"Casualty" shall mean any damage or destruction of all or any portion
of the Property as a result of a fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of the Bank regarding
the Holder Commitment issued pursuant to the terms and conditions of the Trust
Agreement.
"Chattel Paper" shall have the meaning given to such term in Section 1
of the Security Agreement.
"Claims" shall mean any and all obligations, liabilities, losses,
actions, suits, penalties, claims, demands, costs and expenses (including
without limitation reasonable attorney's fees and expenses) of any nature
whatsoever.
"Closing Date" shall mean the Initial Closing Date and each Property
Closing Date.
Appendix-6
"Code" shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.
"Collateral" shall mean all assets of the Lessor, the Construction
Agent and the Lessee, now owned or hereafter acquired, upon which a Lien is
purported to be created by one or more of the Security Documents.
"Commencement Date" shall have the meaning specified in Section 2.2 of
the Lease.
"Commitment" shall mean the obligation of the Bank to make Loans to the
Lessor in an aggregate principal amount at any time outstanding not to exceed
the Lender Commitment.
"Commitment Period" shall mean the period from and including the
Initial Closing Date to and including the Construction Period Termination Date,
or such earlier date as the Commitments shall terminate as provided in the
Credit Agreement or the Holder Commitment shall terminate as provided in the
Trust Agreement.
"Company Obligations" shall mean the obligations of Dollar Tree
Distribution, Inc., in any and all capacities under and with respect to the
Operative Agreements and each Property.
"Completion" shall mean, with respect to a Property, such time as the
acquisition, installation, testing and final completion of the Improvements on
such Property has been achieved in accordance with the Plans and Specifications,
the Agency Agreement and/or the Lease, and in compliance with all Legal
Requirements and Insurance Requirements and a certificate of occupancy has been
issued with respect to such Property by the appropriate governmental entity
(except if non-compliance, individually or in the aggregate, shall not have and
could not reasonably be expected to have a Material Adverse Effect). If the
Lessor purchases a Property that includes existing Improvements that are to be
immediately occupied by the Lessee without any improvements financed pursuant to
the Operative Agreements, the date of Completion for such Property shall be the
Property Closing Date.
"Completion Date" shall mean, with respect to a Property, the earlier
of (a) the date on which Completion for such Property has occurred or (b) the
Construction Period Termination Date.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part thereof, wholly
or partially (temporarily or permanently), by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including without limitation an action by a
Governmental Authority to change the grade of, or widen the streets adjacent to,
any Property or alter the pedestrian or vehicular traffic flow to any Property
so as to result in a change in access to such Property, or by or on account of
an eviction by paramount title or any transfer made in lieu of any such
proceeding or action.
Appendix-7
"Consolidated EBITDA" shall mean, for any period, the aggregate of (i)
the Consolidated Net Income (or Deficit) of DTS and its Subsidiaries for such
period, plus (ii) the sum of interest expense, federal, state or local income
taxes, depreciation, amortization of intangible assets and other noncash
expenses or charges reducing income for such period, all to the extent taken
into account in the calculation of such Consolidated Net Income (or Deficit) for
such period, minus (iii) the sum of extraordinary or nonrecurring gains
(including in connection with the sale or write-up of assets) and other noncash
credits increasing income for such period, all to the extent taken into account
in the calculation of such Consolidated Net Income (or Deficit) for such period.
"Consolidated Funded Debt" shall mean, at any time, the outstanding
balances of all Indebtedness or other extensions of credit in favor of DTS and
its Subsidiaries (on a consolidated basis), plus Capitalized Leases of DTS and
its Subsidiaries (on a consolidated basis).
"Consolidated Net Income (or Deficit)" shall mean, for any period, net
income on a consolidated basis determined in accordance with GAAP applied on a
consistent basis, but excluding any extraordinary gains or losses and related
tax effects thereon.
"Consolidated Subsidiary" shall mean, as to any Person, any Subsidiary
of such Person which under the rules of GAAP consistently applied should have
its financial results consolidated with those of such Person for purposes of
financial accounting statements.
"Construction Advance" shall mean an advance of funds to pay Property
Costs pursuant to Section 5.4 of the Participation Agreement.
"Construction Agent" shall mean Dollar Tree Distribution, Inc., a
Virginia corporation, as the construction agent under the Agency Agreement.
"Construction Budget" shall mean the cost of acquisition, installation,
testing, constructing and developing any Property as determined by the
Construction Agent in its reasonable, good faith judgment.
"Construction Commencement Date" shall mean, with respect to
Improvements, the date on which construction of such Improvements commences
pursuant to the Agency Agreement.
"Construction Contract" shall mean any contract entered into between
the Construction Agent or the Lessee with a Contractor for the construction of
Improvements or any portion thereof on the Property.
"Construction Loan" shall mean any Loan made in connection with a
Construction Advance.
"Construction Loan Property Cost" shall mean with respect to each
Construction Period Property at the date of determination, an amount equal to
(a) the aggregate principal amount of Construction Loans made on or prior to
such date with respect to the Property minus (b) the
Appendix-8
aggregate principal amount of prepayments or repayments of the Loans allocated
to reduce the Construction Loan Property Cost of such Property pursuant to
Section 2.6(c) of the Credit Agreement.
"Construction Period" shall mean, with respect to a Property, the
period commencing on the Construction Commencement Date for such Property and
ending on the Completion Date for such Property.
"Construction Period Property" means, at any date of determination, any
Property as to which the Rent Commencement Date has not occurred on or prior to
such date.
"Construction Period Termination Date" shall mean (a) the earlier of
(i) the date that the Commitments have been terminated in their entirety in
accordance with the terms of Section 2.5(a) of the Credit Agreement, or (ii) the
second anniversary of the Initial Closing Date or (b) such later date as shall
be agreed to by the Bank.
"Contractor" shall mean each entity with whom the Construction Agent or
the Lessee contracts to construct any Improvements or any portion thereof on the
Property.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee, are treated as a single employer
under Section 414 of the Code.
"Co-Owner Trustee" shall have the meaning specified in Section 9.2 of
the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated on or about
the Initial Closing Date, among the Lessor and the Bank.
"Credit Agreement Default" shall mean any event or condition which,
with the lapse of time or the giving of notice, or both, would constitute a
Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition
defined as an "Event of Default" in Section 6 of the Credit Agreement.
"Credit Documents" shall mean the Participation Agreement, the Credit
Agreement, the Notes and the Security Documents.
"Credit Parties" shall mean the Construction Agent, the Lessee and each
Guarantor.
"Deed" shall mean a warranty deed regarding the Land and/or
Improvements in form and substance satisfactory to the Bank.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
Appendix-9
"Deficiency Balance" shall have the meaning given in Section 22.1(b) of
the Lease Agreement.
"Disputes" shall have the meaning given to such term in Section 12.7(d)
of the Participation Agreement.
"Documents" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Dollar Tree" shall mean Dollar Tree Distribution, Inc., a Virginia
corporation, and its successors and permitted assignees.
"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"DTS" shall mean Dollar Tree Stores, Inc., a Virginia corporation, and
its successors and permitted assigns.
"DTSD Realty Trust 1999-1" shall mean the grantor trust created
pursuant to the terms and conditions of the Trust Agreement.
"Election Date" shall have the meaning given to such term in Section
20.1 of the Lease.
"Election Notice" shall have the meaning given to such term in Section
20.1 of the Lease.
"Employee Benefit Plan" or "Plan" shall mean an employee benefit plan
(within the meaning of Section 3(3) of ERISA, including without limitation any
Multiemployer Plan), or any "plan" as defined in Section 4975(e)(1) of the Code
and as interpreted by the Internal Revenue Service and the Department of Labor
in rules, regulations, releases or bulletins in effect on any Closing Date.
"Environmental Claims" shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Substance, (c) from any abatement, removal, remedial, corrective, or
other response action in connection with a Hazardous Substance, Environmental
Law, or other order of a Tribunal or (d) from any actual or alleged damage,
injury, threat, or harm to health, safety, natural resources, or the
environment.
Appendix-10
"Environmental Laws" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases, threatened releases of any Hazardous
Substance into ambient air, surface water, ground water, publicly owned
treatment works, septic system, or land, or otherwise relating to the handling,
storage, treatment, generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment, including without
limitation CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. ss.
6901, et seq., and state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires remediation under
any Environmental Law and is not remediated during any grace period allowed
under such Environmental Law) to violate or results in or threatens (if the
threat requires remediation under any Environmental Law and is not remediated
during any grace period allowed under such Environmental Law) to result in
noncompliance with any Environmental Law.
"Equipment" shall mean personal property of every kind and nature
whatsoever purchased, leased or otherwise acquired using the proceeds of the
Loans or the Holder Advances by the Construction Agent, the Lessee or the Lessor
and all improvements and modifications thereto and replacements thereof, whether
or not now owned or hereafter acquired or now or subsequently attached to,
contained in or used or usable in any way in connection with any operation of
any Improvements.
"Equipment Schedule" shall mean (a) each Equipment Schedule attached to
the applicable Requisition and (b) each Equipment Schedule attached to the
applicable Lease Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" shall mean each entity required to be aggregated with
the Lessee pursuant to the requirements of Section 414(b) or (c) of the Code.
"Eurocurrency Reserve Requirements" shall mean for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal) of reserve requirements in effect on such day
(including without limitation basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed on eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Holder Advance" shall mean a Holder Advance bearing a
Holder Yield based on the Eurodollar Rate.
"Eurodollar Loans" shall mean Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
Appendix-11
"Eurodollar Rate" shall mean for the Interest Period for each
Eurodollar Loan or Eurodollar Holder Advance comprising part of the same
borrowing or advance (including without limitation conversions, extensions and
renewals), a per annum interest rate equal to the per annum rate determined by
the Bank on the basis of the offered rates for deposits in dollars for a period
of time corresponding to such Interest Period (and commencing on the first day
of such Interest Period), reported on Telerate page 3750 as of 11:00 a.m.
(London time) two (2) Business Days before the first day of such Interest
Period. In the event no such offered rates appear on Telerate page 3750,
"Eurodollar Rate" shall mean for the Interest Period for each Eurodollar Loan or
Eurodollar Holder Advance comprising part of the same borrowing or advance
(including without limitation conversions, extensions and renewals), a per annum
interest rate equal to the per annum rate determined by the Bank on the basis of
the offered rates for deposits in dollars for a period of time corresponding to
such Interest Period (and commencing on the first day of such Interest Period),
which appear on the Reuters Screen LIBO Page as of 11:00 a.m. (London time) two
(2) Business Days before the first day of such Interest Period (provided that if
at least two (2) such offered rates appear on the Reuters Screen LIBO Page, the
rate in respect of such Interest Period will be the arithmetic mean of such
offered rates). As used herein, "Reuters Screen LIBO Page" means the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("RMMRS"). In the
event the RMMRS is not then quoting such offered rates, "Eurodollar Rate" shall
mean for the Interest Period for each Eurodollar Loan or Eurodollar Holder
Advance comprising part of the same borrowing or advance (including without
limitation conversions, extensions and renewals), the average (rounded upward to
the nearest one-sixteenth (1/16) of one percent (1%)) per annum rate of interest
determined by the Bank (each such determination to be conclusive and binding) as
of two (2) Business Days prior to the first day of such Interest Period, as the
effective rate at which deposits in immediately available funds in U.S. dollars
are being, have been, or would be offered or quoted by the Bank to major banks
in the applicable interbank market for Eurodollar deposits at any time during
the Business Day which is the second Business Day immediately preceding the
first day of such Interest Period, for a term comparable to such Interest Period
and in the amount of the requested Eurodollar Loan and/or Eurodollar Holder
Advance. If no such offers or quotes are generally available for such amount,
then the Bank shall be entitled to determine the Eurodollar Rate from another
recognized service or interbank quotation, or by estimating in its reasonable
judgment the per annum rate (as described above) that would be applicable if
such quote or offers were generally available.
"Event of Default" shall mean a Lease Event of Default, an Agency
Agreement Event of Default or a Credit Agreement Event of Default.
Appendix-12
"Excepted Payments" shall mean:
(a) all indemnity payments (including without limitation
indemnity payments made pursuant to Section 11 of the Participation
Agreement), whether made by adjustment to Basic Rent or otherwise, to
which the Owner Trustee, or any of its respective Affiliates, agents,
officers, directors or employees is entitled;
(b) any amounts (other than Basic Rent or Termination Value)
payable under any Operative Agreement to reimburse the Owner Trustee,
or any of its Affiliates (including without limitation the reasonable
expenses of the Owner Trustee or the Trust Company and incurred in
connection with any such payment) for performing or complying with any
of the obligations of the Lessee under and as permitted by any
Operative Agreement;
(c) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than
such proceeds or payments payable to the Bank;
(d) any insurance proceeds under policies maintained by the
Owner Trustee or the Bank;
(e) Transaction Expenses or other amounts, fees, disbursements
or expenses paid or payable to or for the benefit of the Owner Trustee;
(f) all right, title and interest of the Owner Trustee to any
Property or any portion thereof or any other property to the extent any
of the foregoing has been released from the Liens of the Security
Documents and the Lease pursuant to the terms thereof;
(g) upon termination of the Credit Agreement pursuant to the
terms thereof, all remaining property covered by the Lease or Security
Documents;
(h) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (g) above;
and
(i) any rights of either the Owner Trustee or the Trust
Company to demand, collect, xxx for or otherwise receive and enforce
payment of any of the foregoing amounts, provided that such rights
shall not include the right to terminate the Lease.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of
all awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Termination Value paid by the Lessee pursuant
to the Lease with respect to such Casualty or Condemnation.
"Exculpated Persons" shall mean the Trust Company (except with respect
to the representations and warranties and the other obligations of the Trust
Company pursuant to the
Appendix-13
Operative Agreements expressly undertaken in its individual capacity, including
without limitation the representations and warranties of the Trust Company
pursuant to Section 6.1 of the Participation Agreement, the obligations of the
Trust Company pursuant to Section 8.2 of the Participation Agreement and the
obligations of the Trust Company pursuant to the Trust Agreement), the Bank
(except with respect to the obligations of the Bank expressly undertaken
pursuant to the Participation Agreement and the Trust Agreement, their officers,
directors, shareholders and partners.
"Exempt Payments" shall have the meaning specified in Section 11.2(e)
of the Participation Agreement.
"Expiration Date" shall mean the last day of the Term; provided, in no
event shall the Expiration Date be later than the fifth annual anniversary of
the Initial Closing Date, unless such later date has been expressly agreed to in
writing by each of the Lessor, the Lessee and the Bank.
"Fair Market Sales Value" shall mean, with respect to any Property, the
amount, which in any event, shall not be less than zero (0), that would be paid
in cash in an arms-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, such Property. Fair Market Sales Value of any
Property shall be determined based on the assumption that, except for purposes
of Section 17 of the Lease, such Property is in the condition and state of
repair required under Section 10.1 of the Lease and the Lessee is in compliance
with the other requirements of the Operative Agreements.
"Federal Funds Effective Rate" shall have the meaning given to such
term in the definition of ABR.
"Financing Parties" shall mean the Lessor, the Owner Trustee, in its
trust capacity, the Bank, as Holder and Lender, and their respective successors
and assigns.
"First Union" shall mean First Union National Bank, a national banking
association, and its permitted successors and assigns.
"Fixtures" shall mean all fixtures relating to the Improvements,
including without limitation all components thereof, located in or on the
Improvements, together with all replacements, modifications, alterations and
additions thereto.
"Force Majeure Event" shall mean any event beyond the control of the
Construction Agent, other than a Casualty or Condemnation, including without
limitation strikes, lockouts, adverse soil conditions, acts of God, adverse
weather conditions, inability to obtain labor or materials, governmental
activities, civil commotion and enemy action; but excluding any event, cause or
condition that results from the Construction Agent's financial condition.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the accounting principles board of the
American Institute of Certified
Appendix-14
Public Accountants, and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Legal Requirement, and shall include,
without limitation, all environmental and operating permits and licenses that
are required for the full use, occupancy, zoning and operating of the Property.
"Governmental Authority" shall mean 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" shall mean a ground lease (in form and substance
satisfactory to the Agent) respecting any Property (a) owned by the Lessee (or a
parent corporation or any Subsidiary of the Lessee) and leased to the Lessor
where such lease has at least a ninety-nine (99) year term and payments set at
no more than $1.00 per year, or (b) where such lease is subject to such other
terms and conditions as are satisfactory to the Bank.
"Guarantors" shall mean the various parties to the Participation
Agreement from time to time, as guarantors of the Construction Agent and the
Lessee with respect to the Operative Agreements and the Properties.
"Hard Costs" shall mean all costs and expenses payable for supplies,
materials, labor and profit with respect to the Improvements under any
Construction Contract.
"Hazardous Substance" shall mean any of the following: (a) any
petroleum or petroleum product, explosives, radioactive materials, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (b) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (c) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law.
"Holder" shall mean the Bank as the holder of one or more Certificates
in connection with the DTSD Realty Trust 1999-1.
"Holder Advance" shall mean any advance made by the Bank to the Owner
Trustee pursuant to the terms of the Trust Agreement or the Participation
Agreement.
Appendix-15
"Holder Amount" shall mean as of any date, the aggregate amount of
Holder Advances made by the Bank to the Trust Estate pursuant to Section 2 of
the Participation Agreement and Section 3.1 of the Trust Agreement less any
payments of any Holder Advances received by the Bank pursuant to Section 3.4 of
the Trust Agreement.
"Holder Commitments" shall mean $540,000, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements.
"Holder Construction Property Cost" shall mean, with respect to each
Construction Period Property, at any date of determination, an amount equal to
the outstanding Holder Advances made with respect thereto under the Trust
Agreement.
"Holder Overdue Rate" shall mean the lesser of (a) the then current
rate of Holder Yield respecting the particular amount in question plus two
percent (2%) and (b) the highest rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to a Property an amount
equal to the outstanding Holder Advances with respect thereto.
"Holder Yield" shall mean with respect to Holder Advances from time to
time either the Eurodollar Rate plus the Applicable Percentage for Eurodollar
Holder Advances or the ABR plus the Applicable Percentage for ABR Holder
Advances as elected by the Owner Trustee from time to time with respect to such
Holder Advances in accordance with the terms of the Trust Agreement; provided,
however, (a) the outstanding Holder Advances shall bear a yield at the ABR
applicable from time to time from and after the dates and during the periods
specified in Section 3.7(c) of the Trust Agreement, and (b) the Holder Advances
shall bear a yield at the ABR applicable from time to time after the dates and
during the periods specified in Section 11.3(f) of the Participation Agreement.
"Impositions" shall mean any and all liabilities, losses, expenses,
costs, charges and Liens of any kind whatsoever for fees, taxes, levies,
imposts, duties, charges, assessments or withholdings ("Taxes") including but
not limited to (i) real and personal property taxes, including without
limitation personal property taxes on any property covered by the Lease that is
classified by Governmental Authorities as personal property, and real estate or
ad valorem taxes in the nature of property taxes; (ii) sales taxes, use taxes
and other similar taxes (including rent taxes and intangibles taxes); (iii)
excise taxes; (iv) real estate transfer taxes, conveyance taxes, stamp taxes and
documentary recording taxes and fees; (v) taxes that are or are in the nature of
franchise, income, value added, privilege and doing business taxes, license and
registration fees; (vi) assessments on any Property, including without
limitation all assessments for public Improvements or benefits, whether or not
such improvements are commenced or completed within the Term; and (vii) taxes,
Liens, assessments or charges asserted, imposed or assessed by the PBGC or any
governmental authority succeeding to or performing functions similar to, the
PBGC; and in each case all interest, additions to tax and penalties thereon,
which at any time prior to, during or with respect to the Term or in respect of
any period for which the Lessee shall
Appendix-16
be obligated to pay Supplemental Rent, may be levied, assessed or imposed by any
Governmental Authority upon or with respect to (a) any Property or any part
thereof or interest therein; (b) the leasing, financing, refinancing,
demolition, construction, substitution, subleasing, assignment, control,
condition, occupancy, servicing, maintenance, repair, ownership, possession,
activity conducted on, delivery, insuring, use, operation, improvement, sale,
transfer of title, return or other disposition of such Property or any part
thereof or interest therein; (c) the Notes, other indebtedness with respect to
any Property, or the Certificates, or any part thereof or interest therein; (d)
the rentals, receipts or earnings arising from any Property or any part thereof
or interest therein; (e) the Operative Agreements, the performance thereof, or
any payment made or accrued pursuant thereto; (f) the income or other proceeds
received with respect to any Property or any part thereof or interest therein
upon the sale or disposition thereof; (g) any contract (including the Agency
Agreement) relating to the construction, acquisition or delivery of the
Improvements or any part thereof or interest therein; (h) the issuance of the
Notes or the Certificates; (i) the Owner Trustee, the Trust or the Trust Estate;
or (j) otherwise in connection with the transactions contemplated by the
Operative Agreements.
"Improvements" shall mean, with respect to the construction,
renovations and/or Modifications on any Land, all buildings, structures,
Fixtures, and other improvements of every kind existing at any time and from
time to time on or under the Land purchased or otherwise acquired using the
proceeds of the Loans or the Holder Advances or which is subject to a Ground
Lease, together with any and all appurtenances to such buildings, structures or
improvements, including without limitation sidewalks, utility pipes, conduits
and lines, parking areas and roadways, and including without limitation all
Modifications and other additions to or changes in the Improvements at any time,
including without limitation (a) any Improvements existing as of the Property
Closing Date as such Improvements may be referenced on the applicable
Requisition and (b) any Improvements made subsequent to such Property Closing
Date.
"Incorporated Covenants" shall have the meaning given to such term in
Section 28.1 of the Lease.
"Incorporated Representations and Warranties" shall have the meaning
given to such term in Section 28.1 of the Lease.
"Indebtedness" of a Person shall mean, without duplication, such
Person's:
(a) obligations for borrowed money;
(b) obligations representing the deferred purchase price of
Property (whether real, personal, tangible, intangible or mixed) or
services (other than accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade);
(c) obligations, whether or not assumed, secured by liens or
payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person;
Appendix-17
(d) obligations which are evidenced by notes, acceptances or
other instruments;
(e) Capitalized Lease obligations;
(f) net liabilities under interest rate swap, exchange or cap
agreements; and
(g) contingent obligations.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, in its
individual and its trust capacity, the Trust, the Trust Company, the Bank and
their respective successors, assigns, directors, shareholders, partners,
officers, employees, agents and Affiliates.
"Indemnity Provider" shall mean, respecting each Property, the Lessee.
"Initial Closing Date" shall mean June 4, 1999.
"Initial Construction Advance" shall mean any initial Advance to pay
for: (a) Property Costs for construction of any Improvements; and (b) the
Property Costs of restoring or repairing any Property which is required to be
restored or repaired in accordance with Section 15.1(c) of the Lease.
"Instruments" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee or
required by the Agency Agreement to be maintained by the Construction Agent, and
all requirements of the issuer of any such policy and, regarding self insurance,
any other requirements of the Lessee.
"Interest Period" shall mean during the Commitment Period and
thereafter as to any Eurodollar Loan or Eurodollar Holder Advance (i) with
respect to the initial Interest Period, the period beginning on the date of the
first Eurodollar Loan and Eurodollar Holder Advance and ending one (1) month,
two (2) months, three (3) months or six (6) months thereafter, as selected by
the Lessor (in the case of a Eurodollar Loan) or the Owner Trustee (in the case
of a Eurodollar Holder Advance) in its applicable notice given with respect
thereto and (ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or Eurodollar
Holder Advance and ending one (1) month, two (2) months, three (3) months or six
(6) months thereafter, as selected by the Lessor by irrevocable notice to the
Bank (in the case of a Eurodollar Loan) or by the Owner Trustee (in the case of
a Eurodollar Holder Advance) in each case not less than two (2) Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following: (A) if any Interest Period would end on a
day which is not a Business Day, such Interest Period shall be extended to the
Appendix-18
next succeeding Business Day (except that where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding Business
Day), (B) no Interest Period shall extend beyond the Maturity Date or the
Expiration Date, as the case may be, (C) where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month, (D) there shall not be more than four (4)
Interest Periods outstanding at any one (1) time.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a joinder agreement, in the form of
EXHIBIT J to the Participation Agreement, executed from time to time between a
Domestic Subsidiary of any Credit Party and Bank.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Construction Agent on the Property Closing Date
relating to such parcel and (b) the schedule to each applicable Lease Supplement
executed and delivered in accordance with the requirements of Section 2.4 of the
Lease.
"Land Cost" shall have the meaning specified in Section 5.4 of the
Agency Agreement.
"Law" shall mean any statute, law, ordinance, regulation, rule,
directive, order, writ, injunction or decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement dated on or
about the Initial Closing Date, between the Lessor and the Lessee, together with
any Lease Supplements thereto.
"Lease Default" shall mean any event or condition which, with the lapse
of time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" shall have the meaning specified in Section
17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement substantially in
the form of Exhibit A to the Lease, together with all attachments and schedules
thereto.
"Legal Requirements" shall mean all foreign, federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Owner Trustee, the
Lessor, the Lessee, the Bank or any Property, Land, Improvement, Equipment or
the taxation, demolition, construction, use or alteration of such Improvements,
whether now or hereafter enacted and in force, including without limitation any
that require repairs, modifications or alterations in or to any Property or in
any way limit the use and enjoyment thereof (including without limitation all
building, zoning and fire codes and the Americans with Disabilities Act of 1990,
42 U.S.C. ss. 12101 et. seq., and any other similar
Appendix-19
federal, state or local laws or ordinances and the regulations promulgated
thereunder) and any that may relate to environmental requirements (including
without limitation all Environmental Laws), and all permits, certificates of
occupancy, licenses, authorizations and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in any
instruments which are either of record or known to the Lessee affecting any
Property or the Appurtenant Rights.
"Lender Commitment" shall mean $17,460,000, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to procure a security interest in favor of the
Bank in the Collateral subject to the Security Documents.
"Lender" shall mean the Bank as lender under the Participation
Agreement and the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessee Credit Agreement" shall mean that certain Amended and Restated
Revolving Credit Agreement dated as of September 27, 1996 among the Lessee as
the borrower, Dollar Tree Stores, Inc. and Dollar Tree Management, Inc., as
guarantors, The First National Bank of Boston, NationsBank, N.A., Signet Bank,
Crestar Bank, First Union National Bank of Virginia, Amsouth Bank of Alabama,
Union Bank of California, N.A., and all other financial institutions which are
parties thereto from time to time, as lenders, and The First National Bank of
Boston, as agent, as such is amended, modified, supplemented, restated and/or
replaced from time to time.
"Lessee Credit Agreement Event of Default" shall mean an Event of
Default as defined in Section 12 of the Lessee Credit Agreement.
"Lessor" shall mean the Owner Trustee, not in its individual capacity,
but as the Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on the
Holder Advances on any Scheduled Interest Payment Date pursuant to the Trust
Agreement (but not including interest on (a) any such scheduled Holder Yield due
on the Holder Advances prior to the Rent Commencement Date with respect to the
Property to which such Holder Advances relate or (b) overdue amounts under the
Trust Agreement or otherwise).
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to protect the Lessor's interest under the
Lease to the extent the Lease is a security agreement or a mortgage.
Appendix-20
"Lessor Lien" shall mean any Lien, true lease or sublease or
disposition of title arising as a result of (a) any claim against the Lessor or
the Trust Company, in its individual capacity, not resulting from the
transactions contemplated by the Operative Agreements, (b) any act or omission
of the Lessor or the Trust Company, in its individual capacity, which is not
required by the Operative Agreements or is in violation of any of the terms of
the Operative Agreements, (c) any claim against the Lessor or the Trust Company,
in its individual capacity, with respect to Taxes or Transaction Expenses
against which the Lessee is not required to indemnify the Lessor or the Trust
Company, in its individual capacity, pursuant to Section 11 of the Participation
Agreement or (d) any claim against the Lessor arising out of any transfer by the
Lessor of all or any portion of the interest of the Lessor in the Properties,
the Trust Estate or the Operative Agreements other than the transfer of title to
or possession of any Properties by the Lessor pursuant to and in accordance with
the Lease, the Credit Agreement, the Security Agreement or the Participation
Agreement or pursuant to the exercise of the remedies set forth in Article XVII
of the Lease.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, option or charge of any kind.
"Limited Recourse Amount" shall mean with respect to all the Properties
on an aggregate basis, an amount equal to the sum of the Termination Values with
respect to all the Properties on an aggregate basis on each Payment Date, less
the Maximum Residual Guarantee Amount as of such date with respect to all the
Properties on an aggregate basis.
"Loan Basic Rent" shall mean the scheduled interest due on the Loans on
any Scheduled Interest Payment Date pursuant to the Credit Agreement (but not
including interest on (a) any such Loan due prior to the Rent Commencement Date
with respect to the Property to which such Loan relates or (b) any overdue
amounts under Section 2.8(b) of the Credit Agreement or otherwise).
"Loan Property Cost" shall mean, with respect to each Property at any
date of determination, an amount equal to (a) the aggregate principal amount all
Loans (including without limitation all Acquisition Loans and Construction
Loans) made on or prior to such date with respect to such Property minus (b) the
aggregate amount of prepayments or repayments as the case may be of the Loans
allocated to reduce the Loan Property Cost of such Property pursuant to Section
2.6(c) of the Credit Agreement.
"Loans" shall mean the loans extended pursuant to the Credit Agreement.
"Marketing Period" shall mean, if the Lessee has given a Sale Notice in
accordance with Section 20.1 of the Lease, the period commencing on the date
such Sale Notice is given and ending on the Expiration Date.
"Margin Certificate" shall have the meaning given to such term in
Section 8.3(k) of the Participation Agreement.
Appendix-21
"Material Adverse Effect" shall, mean a material adverse effect on (a)
the business, condition (financial or otherwise), assets, liabilities or
operations of the Lessee and the other Credit Parties, taken as a whole, (b) the
ability of the Lessee to perform its respective obligations under any Operative
Agreement to which it is a party, (c) the validity or enforceability of any
Operative Agreement or the rights and remedies of the Bank or the Lessor
thereunder, (d) the validity, priority or enforceability of any Lien on any
Property created by any of the Operative Agreements, or (e) the value, utility
or useful life of any Property or the use, or ability of the Lessee to use, any
Property for the purpose for which it was intended.
"Maturity Date" shall mean the Expiration Date.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the
product of the aggregate Property Cost for all of Properties times eighty-five
percent (85%).
"Modifications" shall have the meaning specified in Section 11.1(a) of
the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any
other instrument executed by the Owner Trustee and the Lessee (or regarding any
Property subject to a Ground Lease, the applicable Affiliate of the Lessee) in
favor of the Bank) and evidencing a Lien on the Property, in form and substance
reasonably acceptable to the Bank.
"Multiemployer Plan" shall mean any plan described in Section
4001(a)(3) of ERISA to which contributions are or have been made or required by
the Lessee or any of its Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a plan to which the Lessee or any
ERISA Affiliate and at least one (1) other employer other than an ERISA
Affiliate is making or accruing an obligation to make, or has made or accrued an
obligation to make, contributions.
"New Facility" shall have the meaning given to such term in Section
28.1 of the Lease.
"Notes" shall mean those notes issued to the Bank pursuant to the
Credit Agreement.
"Obligations" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Officer's Certificate" with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer's Certificate.
"Officer's Compliance Certificate" shall have the meaning given to such
term in Section 8.3(k) of the Participation Agreement.
Appendix-22
"Operative Agreements" shall mean the following: the Participation
Agreement, the Agency Agreement, the Trust Agreement, the Certificates, the
Credit Agreement, the Notes, the Lease, the Lease Supplements (and memoranda of
the Lease and each Lease Supplement in a form reasonably acceptable to the
Agent), the Security Agreement, the Mortgage Instruments, the other Security
Documents, the Ground Leases, the Deeds and the Bills of Sale and any and all
other agreements, documents and instruments executed in connection with any of
the foregoing.
"Original Executed Counterpart" shall have the meaning given to such
term in Section 5 of EXHIBIT A to the Lease.
"Overdue Interest" shall mean any interest payable pursuant to Section
2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the Loan Basic Rent, and
any other amount owed under or with respect to the Credit Agreement or the
Security Documents, the rate specified in Section 2.8(b) of the Credit
Agreement, (b) with respect to the Lessor Basic Rent, the Holder Yield and any
other amount owed under or with respect to the Trust Agreement, the Holder
Overdue Rate, and (c) with respect to any other amount, the amount referred to
in clause (y) of Section 2.8(b) of the Credit Agreement.
"Owner Trustee," "Borrower" or "Lessor" shall mean First Security Bank,
National Association, not individually, except as expressly stated in the
various Operative Agreements, but solely as the Owner Trustee under the DTSD
Realty Trust 1999-1, and any successor, replacement and/or additional Owner
Trustee expressly permitted under the Operative Agreements.
"Participation Agreement" shall mean the Participation Agreement dated
on or about the Initial Closing Date, among the Lessee, the Guarantors, the
Owner Trustee, not in its individual capacity except as expressly stated
therein, and the Bank.
"Payment Date" shall mean any Scheduled Interest Payment Date and any
date on which interest or Holder Yield in connection with a prepayment of
principal on the Loans or of the Holder Advances is due under the Credit
Agreement or the Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Pension Plan" shall mean a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other than a
Multiemployer Plan), and to which the Lessee or any ERISA Affiliate may have any
liability, including without limitation any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five (5) years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Permitted Facility" shall mean a Property approved by the Bank.
Appendix-23
"Permitted Liens" shall mean:
(a) the respective rights and interests of the parties to the
Operative Agreements as provided in the Operative Agreements;
(b) the rights of any sublessee or assignee under a sublease
or an assignment expressly permitted by the terms of the Lease for no
longer than the duration of the Lease;
(c) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 13.1 of the
Lease;
(d) Liens arising by operation of law, materialmen's,
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the construction of the
Improvements or in connection with any Modifications or arising in the
ordinary course of business for amounts that either are not more than
thirty (30) days past due or are being diligently contested in good
faith by appropriate proceedings, so long as such proceedings satisfy
the conditions for the continuation of proceedings to contest Taxes set
forth in Section 13.1 of the Lease;
(e) Liens of any of the types referred to in clause (d) above
that have been bonded for not less than the full amount in dispute (or
as to which other security arrangements satisfactory to the Lessor and
the Bank have been made), which bonding (or arrangements) shall comply
with applicable Legal Requirements, and shall have effectively stayed
any execution or enforcement of such Liens;
(f) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are being prosecuted in
good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have been
made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy the conditions for
the continuation of proceedings to contest Taxes set forth in Section
13.1 of the Lease; and
(g) Liens in favor of municipalities to the extent agreed to
by the Lessor.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.
"Plans and Specifications" shall mean, with respect to Improvements,
the plans and specifications for such Improvements to be constructed or already
existing, as such Plans and Specifications may be amended, modified or
supplemented from time to time in accordance with the terms of the Operative
Agreements.
Appendix-24
"Prime Lending Rate" shall have the meaning given to such term in the
definition of ABR.
"Property" shall mean, with respect to each Permitted Facility that is
(or is to be) acquired, constructed and/or renovated pursuant to the terms of
the Operative Agreements, the Land and each item of Equipment and the various
Improvements, in each case located on such Land, including without limitation
each Construction Period Property, each Property subject to a Ground Lease and
each Property for which the Term has commenced.
"Property Acquisition Cost" shall mean the cost to the Lessor to
purchase a Property on a Property Closing Date.
"Property Closing Date" shall mean the date on which the Lessor
purchases a Property or, with respect to the first Advance, the date on which
the Lessor seeks reimbursement for Property previously purchased by the Lessor.
"Property Cost" shall mean with respect to a Property the aggregate
amount (and/or the various items and occurrences giving rise to such amounts) of
the Loan Property Cost plus the Holder Property Cost for such Property (as such
amounts shall be increased equally among all Properties respecting the Holder
Advances and the Loans extended from time to time to pay for the Transaction
Expenses, fees, expenses and other disbursements referenced in Section 7.1 of
the Participation Agreement).
"Purchase Option" shall have the meaning given to such term in Section
20.1 of the Lease.
"Purchasing Lender" shall have the meaning given to such term in
Section 9.8(a) of the Credit Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying,
injecting, escaping, leaching, dumping, seepage, spill, leak, flow, discharge,
disposal or emission of a Hazardous Substance.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
"Rent Commencement Date" shall mean, regarding each Property, the
Completion Date.
"Reportable Event" shall have the meaning specified in ERISA.
Appendix-25
"Requested Funds" shall mean any funds requested by the Lessee or the
Construction Agent, as applicable, in accordance with Section 5 of the
Participation Agreement.
"Requisition" shall have the meaning specified in Section 4.2 of the
Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chairman or Vice Chairman of the Executive Committee of
the Board of Directors, the President, any Senior Vice President or Executive
Vice President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer, except that when used with respect to the
Trust Company or the Owner Trustee, "Responsible Officer" shall also include the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller and any Assistant Controller or any other officer of the Trust
Company or the Owner Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Sale Date" shall have the meaning given to such term in Section
20.3(a) of the Lease.
"Sale Notice" shall mean a notice given to the Lessor in connection
with the election by the Lessee of its Sale Option.
"Sale Option" shall have the meaning given to such term in Section 20.1
of the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which the proceeds
of a sale described in Section 22.1 of the Lease are less than the Limited
Recourse Amount with respect to the Properties if it has been determined that
the Fair Market Sales Value of the Properties at the expiration of the term of
the Lease has been impaired by greater than ordinary wear and tear during the
Term of the Lease.
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar
Loan or Eurodollar Holder Advance, the last day of the Interest Period
applicable to such Eurodollar Loan or Eurodollar Holder Advance (or respecting
any Eurodollar Loan or Eurodollar Holder Advance having and Interest Period of
six (6) months, each three (3) month anniversary of such Loan or Holder
Advance), (b) as to any ABR Loan or any ABR Holder Advance, the fifteenth day of
each month, unless such day is not a Business Day and in such case on the next
occurring Business Day and (c) as to all Loans and Holder Advances, the date of
any voluntary or involuntary payment, prepayment, return or redemption, and the
Maturity Date or the Expiration Date, as the case may be.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
Appendix-26
"Security Agreement" shall mean the Security Agreement dated on or
about the Initial Closing Date between the Lessor and the Bank.
"Security Documents" shall mean the collective reference to the
Security Agreement, the Mortgage Instruments, (to the extent the Lease is
construed as a security instrument) the Lease, the UCC Financing Statements and
all other security documents hereafter delivered to the Bank granting a lien on
any asset or assets of any Person to secure the obligations and liabilities of
the Lessor under the Credit Agreement and/or under any of the other Credit
Documents or to secure any guarantee of any such obligations and liabilities.
"Soft Costs" shall mean all costs which are ordinarily and reasonably
incurred in relation to the acquisition, development, installation,
construction, improvement and testing of the Properties other than Hard Costs,
including without limitation structuring fees, administrative fees, legal fees,
upfront fees, fees and expenses related to appraisals, title examinations, title
insurance, document recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and professional fees
customarily associated with a real estate closing, the Commitment Fee, fees and
expenses of the Owner Trustee payable or reimbursable under the Operative
Agreements and costs and expenses incurred pursuant to Section 7 of the
Participation Agreement.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one (1)
or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"Supplemental Amounts" shall have the meaning given to such term in
Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor,
the Trust Company, the Bank or any other Person under the Lease or under any of
the other Operative Agreements including without limitation payments of the
Termination Value and the Maximum Residual Guarantee Amount and all
indemnification amounts, liabilities and obligations.
"Taxes" shall have the meaning specified in the definition of
"Impositions".
"Term" shall have the meaning specified in Section 2.2 of the Lease.
"Termination Date" shall have the meaning specified in Section 16.2(a)
of the Lease.
"Termination Event" shall mean (a) with respect to any Pension Plan,
the occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, (b) the withdrawal of the Lessee or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was
Appendix-27
a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA),
or the termination of a Multiple Employer Plan, (c) the distribution of a notice
of intent to terminate a Plan or Multiemployer Plan pursuant to Section
4041(a)(2) or 4041A of ERISA, (d) the institution of proceedings to terminate a
Plan or Multiemployer Plan by the PBGC under Section 4042 of ERISA, (e) any
other event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan or Multiemployer Plan, or (f) the complete or partial withdrawal of the
Lessee or any ERISA Affiliate from a Multiemployer Plan.
"Termination Notice" shall have the meaning specified in Section 16.1
of the Lease.
"Termination Value" shall mean the sum of (a) either (i) with respect
to all Properties, an amount equal to the aggregate outstanding Property Cost
for all the Properties, in each case as of the last occurring Payment Date, or
(ii) with respect to a particular Property, an amount equal to the Property Cost
allocable to such Property, plus (b) respecting the amounts described in each of
the foregoing subclause (i) or (ii), as applicable, any and all accrued but
unpaid interest on the Loans and any and all Holder Yield on the Holder Advances
related to the applicable Property Cost, plus (c) to the extent the same is not
duplicative of the amounts payable under clause (b) above, all other Rent and
other amounts then due and payable or accrued under the Agency Agreement, Lease
and/or under any other Operative Agreement (including without limitation amounts
under Sections 11.1 and 11.2 of the Participation Agreement and all costs and
expenses referred to in clause FIRST of Section 22.2 of the Lease).
"Transaction Expenses" shall mean all Soft Costs and all other costs
and expenses incurred in connection with the preparation, execution and delivery
of the Operative Agreements and the transactions contemplated by the Operative
Agreements including without limitation all of the following:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel in negotiating the terms of the Operative
Agreements and the other transaction documents, preparing for the
closings under, and rendering opinions in connection with, such
transactions and in rendering other services customary for counsel
representing parties to transactions of the types involved in the
transactions contemplated by the Operative Agreements;
(b) the reasonable fees, out-of-pocket expenses and
disbursements of accountants for the Lessee in connection with the
transaction contemplated by the Operative Agreements;
(c) any and all other reasonable fees, charges or other
amounts payable to the Bank, the Owner Trustee or any broker which
arises under any of the Operative Agreements;
(d) any other reasonable fee, out-of-pocket expenses,
disbursement or cost of any party to the Operative Agreements or any of
the other transaction documents; and
Appendix-28
(e) any and all Taxes and fees incurred in recording or filing
any Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing
statement with any public office, registry or governmental agency in
connection with the transactions contemplated by the Operative
Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Trust" shall mean the DTSD Realty Trust 1999-1.
"Trust Agreement" shall mean the Amended, Restated and Replacement
Trust Agreement dated on or about the Initial Closing Date between the Bank and
the Owner Trustee.
"Trust Company" shall mean First Security Bank, National Association,
in its individual capacity, and any successor owner trustee under the Trust
Agreement in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 2.2 of the
Trust Agreement.
"Type" shal mean, as to any Loan, whether it is an ABR Loan or a
Eurodollar Loan.
"UCC Financing Statements" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"Unfunded Amount" shall have the meaning specified in Section 3.2 of
the Agency Agreement.
"Unfunded Liability" shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of the Company or any member of the Controlled Group to the PBGC or such Plan
under Title IV of ERISA.
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of the United
States Code.
"U.S. Taxes" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
Appendix-29
"Withholdings" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods and/or services with respect to
any Property.
"Year 2000" shall mean the calendar year beginning January 1, 2000 and
ending December 31, 2000.
Appendix-30
