AMENDMENT NO. 1 TO CERTAIN OPERATIVE AGREEMENTS
THIS AMENDMENT NO. 1 (this "Amendment") dated as of August 28, 2000,
is by and among DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation
("Dollar Tree"); DOLLAR TREE STORES, INC., a Virginia corporation ("DTSI"),
DOLLAR TREE MANAGEMENT, INC., a Virginia corporation ("DTMI"), and DT
KEYSTONE DISTRIBUTION, R.L.L.L.P., a Virginia registered limited liability
limited partnership ("DTKD") (individually, DTSI, DTMI and DTKD may be
referred to as a "Guarantor"; collectively, DTSI, DTMI and DTKD may be
referred to as the "Guarantors"); FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually, 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 as Holder (the "Bank").
Capitalized terms used in this Amendment, but not otherwise defined herein,
shall have the meanings set forth in Appendix A to the Participation
Agreement (hereinafter defined).
W I T N E S S E T H
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Participation
Agreement"), certain of the parties to this Amendment are parties to that
certain Credit Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Credit
Agreement"), certain of the parties to this Amendment are parties to that
certain Trust Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Trust
Agreement"), certain of the parties to this Amendment are parties to that
certain Security Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Security
Agreement"), certain of the parties to this Amendment are parties to that
certain Agency Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Agency
Agreement"), certain of the parties to this Amendment are parties to that
certain Lease Agreement dated as of June 2, 1999 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Lease Agreement")
and certain of the parties to this Amendment are parties to the other Operative
Agreements relating to an $18 million end loaded lease financing facility (the
"Facility") that has been established in favor of Dollar Tree;
WHEREAS, the Credit Parties have requested certain modifications to the
Participation Agreement, the Security Agreement, the Lease, the Agency Agreement
and the other Operative Agreements in connection with the Lessee's request to
increase the size of the Facility from $18 million to $58 million;
WHEREAS, the Financing Parties have agreed to the requested
modifications on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
A. PARTICIPATION AGREEMENT
-----------------------
1. Appendix A to the Participation Agreement is hereby amended to
modify the following defined terms as follows:
"Closing Costs" shall mean all costs and expenses incident to any
sale, lease, exchange, redeployment or other disposition of a Property,
including without limitation reasonable attorneys' fees and escrow fees,
recording fees, broker's fees, any out-of-pocket fees, costs (including breakage
costs) or expenses incurred reasonably, or payable under the Operative
Agreements, by any Financing Party in connection with the same and with the
release of any Operative Agreement, and all applicable transfer taxes which may
be imposed by reason of such sale, lease, exchange, redeployment or other
disposition and the delivery of any and all instruments in connection therewith.
"Company Obligations" shall mean the obligations of Dollar Tree,
in any and all capacities under and with respect to the Operative Agreements and
each Property of which it is a Lessee and with respect to any other Lessee, the
obligations of such Lessee with respect to each Property of which it is a
Lessee; provided, no Person shall be deemed to be a Guarantor with respect to
any obligations with respect to any Property if such Person is the Lessee with
respect to such Property; provided, further, with respect to obligations of the
"Lessee" or the "Construction Agent" or any "Credit Party" under and with
respect to the Operative Agreements that do not relate to a particular Property,
such obligations shall be deemed to be "Company Obligations" of all Lessees and
Construction Agents, and all Lessees and Construction Agents shall be jointly
and severally liable for the direct performance of such obligations.
"Construction Agent" shall mean, with respect to any Property,
the Credit Party designated as lessee in the Lease Supplement respecting such
Property, as the construction agent under the Agency Agreement respecting such
Property.
"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)
September 4, 2001 or (b) such later date as shall be agreed to by the Bank.
"Guarantors" shall mean the various parties to the Participation
Agreement from time to time, as guarantors of the payment and performance
obligations of any Construction Agent and any Lessee with respect to the
Operative Agreements and the Properties; provided, no Person shall be deemed to
be a Guarantor with respect to any obligations under and with respect to the
Operative Agreements in connection with any Property if such Person is the
Lessee with respect to such Property; provided, further, that Dollar Tree shall
not be deemed to be a Guarantor with respect to any obligations of Dollar Tree
under and with respect to the Operative Agreements in its capacity as
Construction Agent.
2
"Holder Commitments" shall mean $1,740,000, as such amount may be
increased or decreased from time to time in accordance with the provisions of
the Operative Agreements.
"Lender Commitments" shall mean $56,260,000, as such amount may
be increased or decreased from time to time in accordance with the provisions of
the Operative Agreements.
"Lessee" shall mean, with respect to any Property, the Credit
Party designated as lessee on the applicable Lease Supplement respecting such
Property.
"Limited Recourse Amount" shall mean with respect to any
Property, an amount equal to the Termination Value with respect to such Property
on each Payment Date, less the Maximum Residual Guarantee Amount as of such date
with respect to such Property.
"Marketing Period" shall mean, if the Lessee that has executed a
Lease Supplement respecting a particular Property 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 date on which such Property is sold
pursuant to Article XXII of the Lease.
"Maximum Residual Guarantee Amount" shall mean, with respect to
any Property, an amount equal to the product of the aggregate Property Cost for
such Property times eighty-three percent (83%).
"Remarketing Fee" shall mean a remarketing fee equal to
$1,290,000 payable to the Bank in accordance with Section 22.1(b) of the Lease;
provided, in the event all of the Properties have been either purchased by the
applicable Lessee or sold to a third party that is not an Affiliate of any
Credit Party on or prior to the Expiration Date, the Bank shall not be entitled
to the Remarketing Fee.
2. The following is hereby added as Section 8.9 of the Participation
Agreement:
8.9 Appointment of Dollar Tree as Agent for each Lessee and each
Construction Agent.
-----------------------------------------------------------------
Each Lessee and each Construction Agent hereby appoints Dollar Tree to
act as its agent for all purposes under this Agreement and the other Operative
Agreements (including, without limitation, with respect to all matters related
to the borrowing and repayment of Loans and Holder Advances). Each Lessee and
each Construction Agent acknowledges and agrees that (a) Dollar Tree may execute
such documents on behalf of any Lessee or Construction Agent as Dollar Tree
deems appropriate in its sole discretion and each Lessee and each Construction
Agent shall be bound by and obligated by all of the terms of any such document
executed by Dollar Tree on its behalf, (b) any notice or other communication
delivered by the Bank or any other Financing Party hereunder to Dollar Tree
shall be deemed to have been delivered to each Lessee and each Construction
Agent and (c) the Bank and each of the other Financing Parties shall accept (and
shall be permitted to rely on) any document or agreement executed by Dollar Tree
3
on behalf of any Lessee or Construction Agent. Each Financing Party agrees that
any notice required to be given to any Lessee or Construction Agent (other than
Dollar Tree) shall also be given to Dollar Tree in its capacity as agent under
this Section 8.9.
3. The last paragraph of Section 12.2 of the Participation Agreement
is hereby amended to read as follows:
Each Lessee and each Construction Agent hereby agrees that Dollar Tree
shall be appointed as its exclusive agent to receive all notices delivered
pursuant hereto on its behalf, and Dollar Tree hereby accepts such appointment
as agent and agrees to accept such delivery on behalf of each Lessee and each
Construction Agent. Except as limited by the immediately preceding sentence,
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.
B. LEASE AGREEMENT.
---------------
1. The introductory paragraph of the Lease is hereby amended to read
as follows:
THIS LEASE AGREEMENT dated as of June 2, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, this
"Lease") is between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, having its principal office at 79 South Main Street, Salt
Lake City, Utah 84111, not individually, but solely as the Owner Trustee under
the DTSD Realty Estate Trust 1999-1, as lessor (the "Lessor"), DOLLAR TREE
DISTRIBUTION, INC., a Virginia corporation, having its principal place of
business at 500 Volvo Parkway, Chesapeake, Virginia 23320, and each of the
various Credit Parties deemed to be a party hereto from time to time, as lessee
with respect to one or more Properties.
2. Section 1.1 of the Lease is hereby amended to read as follows:
1.1 Definitions.
For purposes of this Lease, capitalized terms used in this Lease and
not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of June 2, 1999
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Dollar Tree Distribution, Inc., the various
parties thereto from time to time, as the Guarantors, Lessor and First Union
National Bank, as Lender and as Holder. Unless otherwise indicated, references
in this Lease to articles, sections, paragraphs, clauses, appendices, schedules
and exhibits are to the same contained in this Lease.
4
3. Section 7.1 of the Lease is hereby amended to read as follows:
7.1 Ownership of the Properties.
(a) Lessor and each Lessee intend that (i) for financial
accounting purposes with respect to each Lessee (A) this Lease will be
treated as an "operating lease" pursuant to Statement of Financial
Accounting Standards No. 13, as amended, (B) Lessor will be treated as
the owner and lessor of each Property and (C) the Lessee that has
executed a Lease Supplement respecting a particular Property will be
treated as the lessee of such Property, but (ii) for federal and all
state and local income tax purposes and bankruptcy purposes (A) this
Lease will be treated as a financing arrangement and (B) the Lessee
that has executed a Lease Supplement respecting a particular Property
will be treated as the owner of such Property and will be entitled to
all tax benefits ordinarily available to owners of property similar to
such Property for such tax purposes. Notwithstanding the foregoing,
neither party hereto has made, or shall be deemed to have made, any
representation or warranty as to the availability of any of the
foregoing treatments under applicable accounting rules, tax,
bankruptcy, regulatory, commercial or real estate law or under any
other set of rules. The applicable Lessee shall claim the cost
recovery deductions associated with each Property, and Lessor shall
not, to the extent not prohibited by Law, take on its tax return a
position inconsistent with such Lessee's claim of such deductions.
(b) In order to secure the obligations of any Lessee now existing
or hereafter arising under any and all Operative Agreements, each
Lessee hereby conveys, grants, assigns, transfers, hypothecates,
mortgages and sets over to Lessor, for the benefit of all Financing
Parties, a first priority security interest (but subject to the
security interest in the assets granted by Lessee in favor of the
Agent in accordance with the Security Documents) in and lien on all
right, title and interest of such Lessee (now owned or hereafter
acquired) in and to all Properties, to the extent such is personal
property and irrevocably grants and conveys a lien, deed of trust and
mortgage on all right, title and interest of such Lessee (now owned or
hereafter acquired) in and to all Properties to the extent such is
real property. Lessor and each Lessee further intend and agree that,
for the purpose of securing the obligations of any Lessee and/or the
Construction Agent now existing or hereafter arising under the
Operative Agreements, (i) the Lease and each Lease Supplement shall be
a security agreement and financing statement respecting each of the
Properties and all proceeds (including without limitation insurance
proceeds thereof) to the extent such is personal property and an
irrevocable grant and conveyance of a lien, deed of trust and mortgage
on each of the Properties and all proceeds (including without
limitation insurance proceeds thereof) to the extent such is real
property; (ii) the acquisition of title (or to the extent applicable,
a leasehold interest pursuant to a Ground Lease) in each Property
referenced in Article II constitutes a grant by each Lessee to Lessor
of a security interest, lien, deed of trust and mortgage in all of
such Lessee's right, title and interest in and to each Property and
all proceeds (including without limitation insurance proceeds thereof)
of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property, whether in the form
of cash, investments, securities or other property, and an assignment
of all rents, profits and income produced by each Property; and (iii)
notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from financial intermediaries, bankers or
agents (as applicable) of any Lessee shall be deemed to have been
given for the purpose of perfecting such lien, security interest,
mortgage lien and deed of trust under applicable law. Each Lessee
5
shall promptly take such actions as Lessor may reasonably request
(including without limitation the filing of Uniform Commercial Code
Financing Statements, Uniform Commercial Code Fixture Filings and
memoranda (or short forms) of this Lease and the various Lease
Supplements) to ensure that the lien, security interest, mortgage lien
and deed of trust in each Property and the other items referenced
above will be deemed to be a perfected lien, security interest,
mortgage lien and deed of trust of first priority under applicable law
and will be maintained as such throughout the Term.
4. Section 20.1 of the Lease is hereby amended to read as follows:
20.1 Purchase Option or Sale Option-General Provisions.
Not less than one hundred eighty (180) days (or respecting the
Purchase Option only, not less than sixty (60) days) and no more than two
hundred forty (240) days prior to the third annual anniversary of the date of
this Lease, the Expiration Date or, respecting the Purchase Option only, any
Payment Date (such third annual anniversary date, such Expiration Date or,
respecting the Purchase Option only, any such Payment Date being hereinafter
referred to as the "Election Date"), the applicable Lessee respecting one or
more Properties may give Lessor irrevocable written notice (the "Election
Notice") that such Lessee is electing to exercise either (a) the option to
purchase one or more Properties on the applicable Election Date (the "Purchase
Option") or (b) with respect to an Election Notice given in connection with the
third annual anniversary of the date of this Lease or the Expiration Date only,
the option to remarket one or more of such Properties to a Person other than
Lessee or any Affiliate of Lessee and cause a sale of such Properties to occur
on the applicable Election Date pursuant to the terms of Section 22.1 (the "Sale
Option"). If the applicable Lessee does not give an Election Notice indicating
the Purchase Option or the Sale Option at least one hundred eighty (180) days
and not more than two hundred forty (240) days prior to the Expiration Date,
then the applicable Lessee shall be deemed to have elected for the Purchase
Option to apply with respect to all Properties for which the Lessee has executed
a Lease Supplement on the Expiration Date. If the applicable Lessee shall elect
(or be deemed to have elected) to exercise the Purchase Option for one or more
Properties then the applicable Lessee shall pay to Lessor on the date on which
such purchase is scheduled to occur an amount equal to the Termination Value for
the affected Property or Properties (which the parties do not intend to be a
"bargain" purchase price) and, upon receipt of such amounts and satisfaction of
such obligations, Lessor shall transfer to the applicable Lessee all of Lessor's
right, title and interest in and to such Property or Properties in accordance
with Section 20.2.
5. Section 20.2 of the Lease is hereby amended to read as follows:
20.2 Lessee Purchase Option.
Provided, no Default or Event of Default shall have occurred
and be continuing (other than those that will be cured by the payment of the
Termination Value for one or more of the Properties) and provided, that the
Election Notice has been appropriately given specifying the Purchase Option, the
applicable Lessee shall purchase the Property or Properties identified (or
deemed to be identified) in the applicable Election Notice on the applicable
6
Election Date at a price equal to the Termination Value for such Property or
Properties (which the parties do not intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of
this Lease with respect to any Property pursuant to the terms of Section 16.2,
or in connection with a particular Lessee's exercise of its Purchase Option,
upon the date on which this Lease is to terminate with respect to one or more
Properties, and upon tender by Lessee of the amounts set forth in Section
16.2(b) or this Section 20.2, as applicable, Lessor shall execute, acknowledge
(where required) and deliver to such Lessee, at such Lessee's cost and expense,
each of the following: (a) a termination or assignment (as requested by the
applicable Lessee) of each applicable Ground Lease and special or limited
warranty Deeds conveying each affected Property (to the extent it is real
property not subject to a Ground Lease) to the applicable Lessee free and clear
of the Lien of this Lease, the Lien of the Credit Documents and any Lessor
Liens; (b) a Bill of Sale conveying each affected Property (to the extent it is
personal property) to the applicable Lessee free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens; (c) any real
estate tax affidavit or other document required by law to be executed and filed
in order to record the applicable Deed and/or the applicable Ground Lease
termination; and (d) FIRPTA affidavits. All of the foregoing documentation must
be in form and substance reasonably satisfactory to Lessor. The applicable
Property shall be conveyed to the applicable Lessee "AS-IS, WHERE-IS" and in
then present physical condition.
If any Property is the subject of remediation efforts
respecting Hazardous Substances at the applicable Election Date which could
materially and adversely impact the Fair Market Sales Value of such Property
(with materiality determined in Lessor's discretion), then the applicable Lessee
shall be obligated to purchase each such Property pursuant to Section 20.2.
On the applicable Election Date on which a particular Lessee
has elected to exercise its Purchase Option, such Lessee shall pay (or cause to
be paid) to Lessor, the Bank and all other parties, as appropriate, the sum of
all costs and expenses incurred by any such party in connection with the
election by such Lessee to exercise its Purchase Option and all Rent and all
other amounts then due and payable or accrued under this Lease and/or any other
Operative Agreement.
6. Section 20.3 of the Lease is hereby amended to read as follows:
20.3 Third Party Sale Option.
(a) Provided, that (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Election Notice has been
appropriately given specifying the Sale Option, the applicable Lessee
shall undertake to cause a sale of the applicable Property or
Properties on the applicable Election Date (all as specified in the
Election Notice), in accordance with the provisions of Section 22.1
hereof. Such Election Date on which a sale is required may be
hereafter referred to as the "Sale Date".
(b) In the event a particular Lessee exercises the Sale Option
then, as soon as practicable and in all events not less than sixty
7
(60) days prior to the Sale Date, such Lessee at its expense shall
cause to be delivered to Lessor a Phase I environmental site
assessment for each such Property recently prepared (no more than
thirty (30) days old prior to the Sale Date) by an independent
recognized professional reasonably acceptable to Lessor and in form,
scope and content reasonably satisfactory to Lessor. In the event that
Lessor shall not have received such environmental site assessment by
the date sixty (60) days prior to the Sale Date or in the event that
such environmental assessment shall reveal the existence of any
material violation of Environmental Laws, other material Environmental
Violation or potential material Environmental Violation (with
materiality determined in each case by Lessor in its reasonable
discretion), then such Lessee on the Sale Date shall pay to Lessor an
amount equal to the Termination Value for the applicable Property or
Properties and any and all other amounts due and owing hereunder. Upon
receipt of such payment and all other amounts due under the Operative
Agreements, Lessor shall transfer to such Lessee all of Lessor's
right, title and interest in and to all the Properties in accordance
with Section 19.1.
7. The following is hereby added as Section 20.4 of the Lease:
20.4 Appointment of Dollar Tree as Agent for the Lessees with Respect
to the Purchase Option or the Sale Option.
Each Lessee hereby appoints Dollar Tree to act as its agent, and
Dollar Tree hereby accepts such appointment, for the purpose of providing the
Election Notice pursuant to Section 20.1 on behalf of each of the Lessees.
8. Section 22.1 of the Lease is hereby amended to read as follows:
22.1 Sale Procedure.
(a) During the Marketing Period, the Lessee that has executed a
Lease Supplement respecting one or more Properties for which the Sale
Option has been elected, on behalf of Lessor, shall obtain bids for
the cash purchase of such Property or Properties in connection with a
sale to one (1) or more third party purchasers to be consummated on
the Sale Date for the highest price available, shall notify Lessor
promptly of the name and address of each prospective purchaser and the
cash price which each prospective purchaser shall have offered to pay
for each such Property and shall provide Lessor with such additional
information about the bids and the bid solicitation procedure as
Lessor may reasonably request from time to time. All such prospective
purchasers must be Persons other than the applicable Lessee or any
Affiliate of the applicable Lessee.
Lessor may reject any and all bids and may solicit and obtain
bids by giving Lessee written notice to that effect; provided,
however, that notwithstanding the foregoing, Lessor may not reject the
bids for any Property submitted by the applicable Lessee if such bids,
in the aggregate, are greater than or equal to the sum of the Limited
Recourse Amount for such Property plus Closing Costs related to the
sale of such Property, and represent bona fide offers from one (1) or
more third party purchasers. If the highest price which a prospective
purchaser or the prospective purchasers shall have offered to pay for
8
a Property on the Sale Date is less than the sum of the Limited
Recourse Amount for such Property plus Closing Costs related to the
sale of such Property or if such bids do not represent bona fide
offers from one (1) or more third parties or if there are no bids or
if such Property is otherwise not sold on the Sale Date, Lessor may
elect to retain such Property by giving the applicable Lessee prior
written notice of Lessor's election to retain the same, and promptly
upon receipt of such notice, the applicable Lessee shall surrender, or
cause to be surrendered, each of the Properties specified in such
notice in accordance with the terms and conditions of Section 10.1.
Upon acceptance of any bid, Lessor agrees, at the applicable Lessee's
request, to execute a contract of sale with respect to such sale, so
long as the same is consistent with the terms of this Article 22 and
provides by its terms that it is nonrecourse to Lessor.
Unless Lessor shall have elected to retain one or more of the
Properties pursuant to the provisions of the preceding paragraph, the
applicable Lessee shall arrange for Lessor to sell each other Property
for which the Sale Option has been elected and a bid has been accepted
free and clear of the Lien of this Lease and any Lessor Liens
attributable to Lessor, without recourse or warranty (of title or
otherwise), for cash on the Sale Date to the purchaser or purchasers
offering the highest cash sales price, as identified by the applicable
Lessee or Lessor, as the case may be; provided, however, solely as to
Lessor or the Trust Company, in its individual capacity, any Lessor
Lien shall not constitute a Lessor Lien so long as Lessor or the Trust
Company, in its individual capacity, is diligently and in good faith
contesting, at the cost and expense of Lessor or the Trust Company, in
its individual capacity, such Lessor Lien by appropriate proceedings
in which event the applicable Sale Date, all without penalty or cost
to the applicable Lessee, shall be delayed for the period of such
contest. To effect such transfer and assignment, Lessor shall execute,
acknowledge (where required) and deliver to the appropriate purchaser
each of the following: (a) special or limited warranty Deeds conveying
each such Property (to the extent it is real property titled to
Lessor) and an assignment of the Ground Lease conveying the leasehold
interest of Lessor in each such Property (to the extent it is real
property and subject to a Ground Lease) to the appropriate purchaser
free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens; (b) a Bill of Sale conveying each such
Property (to the extent it is personal property) titled to Lessor to
the appropriate purchaser free and clear of the Lien of this Lease,
the Lien of the Credit Documents and any Lessor Liens; (c) any real
estate tax affidavit or other document required by law to be executed
and filed in order to record each Deed and/or each Ground Lease
assignment; and (d) FIRPTA affidavits, as appropriate. All of the
foregoing documentation must be in form and substance reasonably
satisfactory to Lessor. The applicable Lessee shall surrender the
Properties so sold or subject to such documents to each purchaser in
the condition specified in Section 10.1, or in such other condition as
may be agreed between the applicable Lessee and such purchaser. The
applicable Lessee shall not take or fail to take any action which
would have the effect of unreasonably discouraging bona fide third
party bids for any Property. In the event any Property for which the
Sale Option has been elected has not been sold by the Expiration Date,
each applicable Lessee shall continue to use its best efforts to
market all remaining unsold Properties.
9
(b) If any Property is sold on a Sale Date to a third party
purchaser in accordance with the terms of Section 22.1(a) and the
purchase price paid for such Property is less than the Property Cost
for such Property (hereinafter such difference shall be referred to as
the "Deficiency Balance"), then the Lessee that has executed a Lease
Supplement with respect to such Property hereby unconditionally
promises to pay to Lessor on the Sale Date the lesser of (i) the
Deficiency Balance, or (ii) the Maximum Residual Guarantee Amount for
such Property. On a Sale Date if Lessor receives any amount in excess
of the Termination Value for such Property from a third party
purchaser, then Lessor shall pay to the applicable Lessee any such
excess amounts. If one or more of the Properties are retained by
Lessor pursuant to an affirmative election made by Lessor pursuant to
the provisions of Section 22.1(a) or if any Property for which the
Sale Option has been elected is not sold on or prior to the Expiration
Date, then the Lessee that has executed a Lease Supplement with
respect to such Property hereby unconditionally promises to pay to
Lessor on the Sale Date an amount equal to the Maximum Residual
Guarantee Amount for each such Property so retained, together with any
and all Rent and all other amounts then due and owing by such Lessee
to the Financing Parties pursuant to the Operative Agreements. Each
Lessee shall also pay to the Bank, on the Expiration Date, such
Lessee's pro rata share of the Remarketing Fee (based on the ratio of
the Property Cost allocable to such retained Properties for which such
Lessee has executed a Lease Supplement to the aggregate Property Cost
for all Properties so retained). The failure to pay the Deficiency
Balance or the Maximum Residual Guarantee Amount, the Remarketing Fee
or any such other amounts referenced in this Section 22.1(b) shall
constitute a Lease Event of Default.
Upon the sale to a third party purchaser (which is not a
Subsidiary or Affiliate of any Credit Party) of any Property, provided
that the Deficiency Balance or Maximum Residual Guarantee Amount, the
Remarketing Fee and all such other amounts referenced in this Section
22.1(b) have been paid, the proceeds from the sale of such Property
will be applied in accordance with Section 22.2.
(c) In the event that any Property is either sold to one (1) or
more third party purchasers on the Sale Date or retained by Lessor in
connection with an affirmative election made by Lessor pursuant to the
provisions of Section 22.1(a), then in either case on the applicable
Sale Date the applicable Lessee shall provide Lessor or such third
party purchaser (unless otherwise agreed by such third party
purchaser) with (i) all permits, certificates of occupancy,
governmental licenses and authorizations necessary to use, operate,
repair, access and maintain each such Property for the purpose it is
being used by the applicable Lessee, and (ii) such manuals, permits,
easements, licenses, intellectual property, know-how, rights-of-way
and other rights and privileges in the nature of an easement as are
reasonably necessary or desirable in connection with the use,
operation, repair, access to or maintenance of each such Property for
its intended purpose or otherwise as Lessor or such third party
purchaser(s) shall reasonably request (and a royalty-free license or
similar agreement to effectuate the foregoing on terms reasonably
agreeable to Lessor or such third party purchaser(s), as applicable).
All assignments, licenses, easements, agreements and other deliveries
required by clauses (i) and (ii) of this paragraph (c) shall be in
form reasonably satisfactory to Lessor or such third party
purchaser(s), as applicable, and shall be fully assignable (including
without limitation both primary assignments and assignments given in
the nature of security) without payment of any fee, cost or other
10
charge. The applicable Lessee shall also execute any documentation
requested by Lessor or such third party purchaser(s), as applicable,
evidencing the continuation or assignment of each Ground Lease.
(d) Notwithstanding the foregoing provisions of this Section 22.1
and the rights of each Lessee to remarket the Property or Properties
with respect to which such Lessee has executed a Lease Supplement,
Lessor and each other Financing Party at all times shall be permitted
to market the Properties and solicit bids therefor.
9. Section 22.2 of the Lease is hereby amended to read as follows:
22.2 Application of Proceeds of Sale.
Lessor shall apply the proceeds of sale of each Property sold
in the following order of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the Bank, as the
case may be) for the payment of Closing Costs;
(b) SECOND, so long as the Credit Agreement is in effect and any
Loans or Holder Advances or any amount is owing to the Financing
Parties under any Operative Agreement, to the Bank to be allocated in
accordance with Section 8.7 of the Participation Agreement; and
(c) THIRD, to Lessee.
C. SECURITY AGREEMENT
------------------
1. The first paragraph of the Preliminary Statement to the Security
Agreement is hereby deleted and replaced with the following:
Pursuant to the Credit Agreement, the Bank has agreed to make Loans to
the Borrower in an aggregate amount not to exceed $56,260,000, upon the terms
and subject to the conditions set forth therein, to be evidenced by the Notes
issued by the Borrower under the Credit Agreement. Pursuant to the Trust
Agreement, the Bank has agreed to purchase the ownership interests of the Trust
created thereby in an aggregate amount not to exceed $1,740,000, upon the terms
and subject to the conditions set forth therein, to be evidenced by the
Certificates issued by the Borrower under the Trust Agreement. The Borrower is,
or shall be upon the date of the initial Advance with respect to each Property,
the legal and beneficial owner of such Property (except the Borrower may have a
ground leasehold interest in certain Properties pursuant to one (1) or more
Ground Leases).
11
2. Section 24 of the Security Agreement is hereby amended to read as
follows:
24. EACH LESSEE AS A PARTY.
EACH LESSEE HAS EXECUTED OR IS DEEMED TO HAVE EXECUTED THIS SECURITY
AGREEMENT FOR THE PURPOSE OF SUBJECTING TO THE SECURITY INTERESTS GRANTED
HEREUNDER ALL OF ITS RIGHT, TITLE, ESTATE AND INTEREST, IF ANY, IN AND TO THE
TRUST PROPERTY TO SECURE ALL OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE
OPERATIVE AGREEMENTS. ACCORDINGLY, EACH LESSEE HEREBY GRANTS TO THE BANK A
SECURITY INTEREST IN AND TO ALL OF ITS RIGHT, TITLE, ESTATE AND INTEREST, IF
ANY, IN AND TO THE TRUST PROPERTY (TO THE EXTENT SUCH LESSEE HAS ANY RIGHT,
TITLE OR INTEREST THEREIN AND WITHOUT REGARD TO ANY LANGUAGE IN SECTION 2 OR THE
DEFINITION OF "TRUST PROPERTY" OR ANY DEFINITION OF ANY ITEM CONSTITUTING THE
TRUST PROPERTY WHICH OTHERWISE WOULD LIMIT THE TRUST PROPERTY TO THE RIGHT,
TITLE AND INTEREST OF THE BORROWER THEREIN) TO SECURE ALL OBLIGATIONS OF ALL
CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS. EACH LESSEE ACKNOWLEDGES AND
AGREES THAT, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE AGENT SHALL HAVE
THE RIGHT TO EXERCISE ANY OR ALL OF ITS REMEDIES HEREUNDER AS AGAINST ANY SUCH
RIGHT, TITLE, ESTATE OR INTEREST OF SUCH LESSEE IN OR TO THE TRUST PROPERTY.
D. AGENCY AGREEMENT.
----------------
Paragraph A of the Preliminary Statement to the Agency Agreement is
hereby amended to read as follows:
A. The Lessor and the Construction Agents are parties to that certain
Lease Agreement dated as of even date herewith (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Lease"), pursuant
to which each Construction Agent, in each case as lessee with respect to one or
more Properties, has agreed to lease certain Land, Improvements and Equipment
and/or to sublease a ground leasehold in certain Properties subject to one (1)
or more Ground Leases from the Lessor.
E. OTHER OMNIBUS AMENDMENTS TO OPERATIVE AGREEMENTS.
------------------------------------------------
1. Each Credit Party hereby agrees that, by its execution of this
Amendment, such Credit Party shall be deemed to have executed and shall be
deemed to be a party to each Operative Agreement in such capacity as is
necessary or desirable to effect the intent of the parties hereto with respect
to this Amendment.
2. Notwithstanding any term or provision in any Operative Agreement
to the contrary, all references to the "Lessee" or the "Construction Agent"
set forth in all Operative Agreements shall be deemed as of the Effective
Date to refer, with respect to any Property, to the Credit Party designated
12
as Lessee on the applicable Lease Supplement respecting such Property. The
parties hereto acknowledge and agree that DTKD shall be the sole Lessee and
Construction Agent with respect to any Property located in the Commonwealth
of Pennsylvania.
3. In the event Dollar Tree shall cease to be named as Lessee on one
or more Lease Supplements, Dollar Tree shall be deemed to be a Guarantor for all
purposes under the Operative Agreements (including, without limitation, for
purposes of the Guaranty under Section 6B of the Participation Agreement) as
though Dollar Tree were a party to the Participation Agreement in such capacity.
4. Notwithstanding any term or provision in any Operative Agreement
to the contrary, no Person shall be deemed to be a Guarantor under Section 6B of
the Participation Agreement or under any other Operative Agreement with respect
to any Company Obligations arising out of or in connection with any Property of
which such person is the Lessee and the Construction Agent; provided, however,
nothing herein shall be deemed or interpreted to relieve any Lessee or any
Construction Agent of any of its obligations as lessee or construction agent
with respect to such Property under the Lease, the Agency Agreement or under any
other Operative Agreement.
5. This Amendment shall be effective upon satisfaction of the
following conditions:
(a) execution and delivery of this Amendment by the parties
hereto and execution and delivery of such other documents, agreements
or instruments deemed necessary or advisable by the Bank; and
(b) receipt by the Bank of an Officer's and/or a Secretary's
Certificate of each Credit Party (in form and in substance reasonably
satisfactory to the Bank) certifying that a resolution has been
adopted by such Credit Party's Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment, specifying that no Default or Event of Default shall have
occurred and be continuing, specifying that the representations and
warranties of the Credit Parties set forth in the Participation
Agreement are true and correct as of the effective date hereof (except
for any such representations and warranties which relate solely to an
earlier time) and certifying as to the incumbency of the officer of
the Credit Parties executing this Amendment; and
(c) receipt by the Bank of a legal opinion from counsel for the
Credit Parties (in form and substance reasonably satisfactory to the
Bank).
6. Except as modified hereby, all of the terms and provisions of the
Operative Agreements (including Schedules and Exhibits) shall remain in full
force and effect.
13
7. The Lessor agrees to pay or cause to be paid, in either case in
accordance with Section 7.3 of the Participation Agreement, all reasonable
costs and expenses of the Bank in connection with the preparation,
execution and delivery of this Amendment, including without limitation the
reasonable fees and expenses of Moore & Van Allen, PLLC.
8. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original
and it shall not be necessary in making proof of this Amendment to produce
or account for more than one such counterpart. 9. This Amendment shall be
deemed to be a contract made under, and for all purposes shall be construed
in accordance with the laws of the State of North Carolina.
[Remainder of Page Intentionally Left Blank]
14
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
DOLLAR TREE DISTRIBUTION, INC., as the
Lessee and as the Construction Agent
By: /s/ Frederick C. Coble
---------------------------
Name: Frederick C. Coble
---------------------------
Title: Sr. Vice President, CFO
---------------------------
DOLLAR TREE STORES, INC.,
as a Guarantor
By: /s/ Frederick C. Coble
---------------------------
Name: Frederick C. Coble
---------------------------
Title: Sr. Vice President, CFO
---------------------------
DOLLAR TREE MANAGEMENT, INC.,
as a Guarantor
By: /s/ Frederick C. Coble
---------------------------
Name: Frederick C. Coble
---------------------------
Title: Sr. Vice President, CFO
---------------------------
DT KEYSTONE DISTRIBUTION, R.L.L.L.P.,
as a Guarantor
by DT Keystone Management, Inc., its
general partner
By: /s/ Frederick C. Coble
---------------------------
Name: Frederick C. Coble
---------------------------
Title: Sr. Vice President
---------------------------
(Signature pages continue)
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as the Owner
Trustee under then DTSD Realty Trust 1999-1
By: /s/ DeAnn Madsen
---------------------------
Name: Deann Madsen
---------------------------
Title: Trust Officer
---------------------------
FIRST UNION NATIONAL BANK, as the Holder
and as the Lender
By: /s/ W. R. Garrett
---------------------------
Name: Weston Garrett
---------------------------
Title: Vice President
---------------------------
(Signature pages end)