GUARANTY AGREEMENT
Dated as of April 15, 1997
By
DOLLAR TREE MANAGEMENT, INC.
Re: $30,000,000 7.29% Senior Guaranteed Notes
Due April 30, 2004
of
DOLLAR TREE DISTRIBUTION, INC.
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties.......................................................................1
Recitals......................................................................1
SECTION 1. DEFINITIONS...................................................2
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENTS.........................2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE...........................2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY...................3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SUBSIDIARY GUARANTOR....8
SECTION 6. SUBSIDIARY GUARANTOR COVENANTS................................8
Section 6.1. Compliance with Law........................................8
Section 6.2. Insurance..................................................8
Section 6.3. Maintenance of Properties..................................8
Section 6.4. Payment of Taxes and Claims................................8
Section 6.5. Corporate Existence, Etc...................................9
Section 6.6. Nature of Business.........................................9
Section 6.7. Guaranty to Rank Pari Passu................................9
SECTION 7. SUBMISSION TO JURISDICTION....................................9
SECTION 8. NOTICES.......................................................10
SECTION 9. AMENDMENTS AND MODIFICATIONS; SOLICITATION OF NOTEHOLDERS.....10
SECTION 10. MISCELLANEOUS.................................................11
SECTION 11. INDEMNITY.....................................................11
Signatures....................................................................13
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GUARANTY AGREEMENT
Re: $30,000,000 7.29% Senior Guaranteed Notes,
Due April 30, 2004
of
DOLLAR TREE DISTRIBUTION, INC.
This GUARANTY AGREEMENT (the or this "Guaranty") is dated as of April
15, 1997, by Dollar Tree Management, Inc., a Virginia corporation (the
"Subsidiary Guarantor").
RECITALS:
A. Dollar Tree Stores, Inc., a Virginia corporation (the "Parent
Guarantor"), is the direct owner of 100% of the issued and outstanding shares
of capital stock of the Subsidiary Guarantor.
B. Dollar Tree Distribution, Inc., a Virginia corporation
the "Issuer") is a Wholly-owned Subsidiary of the Parent Guarantor.
C. The Parent Guarantor and the Issuer are concurrently entering
into separate and several Note Agreements, each dated as of April 15, 1997 (as
amended from time to time, collectively, the "Note Agreements") with each of the
Purchasers named on Schedule I attached thereto (collectively, the
"Purchasers"), pursuant to which the Issuer will issue and sell to the
Purchasers $30,000,000 aggregate principal amount of its 7.29% Senior Guaranteed
Notes, due April 30, 2004 (the "Notes"). The Purchasers and each and every other
holder from time to time of the Notes are herein collectively referred to as the
"Noteholders". Pursuant to Section 6 of the Note Agreements, the obligations of
the Issuer will be guaranteed by the Parent Guarantor. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Note Agreements.
D. The Purchasers have required that the Subsidiary Guarantor enter
into this Guaranty as security for the Notes and the Subsidiary Guarantor by
reason of its interest in the repayment by the Issuer of certain indebtedness
incurred and thereby provide the Issuer with funds to repay indebtedness and for
other general corporate purposes, has agreed to execute this Guaranty.
NOW, THEREFORE, in consideration of the premises and for the purpose of
inducing the purchase and acceptance of the Notes by the Purchasers and in
further consideration of the sum of Ten Dollars ($10.00) paid to the Subsidiary
Guarantor by the Purchasers, the receipt whereof is hereby acknowledged, the
Subsidiary Guarantor does hereby covenant and agree as follows:
SECTION 1. DEFINITIONS.
Unless the context otherwise requires, capitalized terms used herein
shall have the meanings assigned thereto in the Note Agreements and such
definitions shall be equally applicable to both the singular and plural forms of
any of the terms so defined.
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENTS.
(a) Subject to Section 2(B) below, the Subsidiary Guarantor does
hereby irrevocably, absolutely and unconditionally guaranty unto the Noteholders
(1) the full and prompt payment of the principal of, premium, if any, and
interest on the Notes from time to time outstanding, as and when such payments
shall become due and payable, whether by lapse of time, upon redemption or
prepayment, by extension or by acceleration or declaration or otherwise
(including (to the extent legally enforceable) interest due on overdue payments
of principal, premium, if any, or interest accrued after the commencement of any
proceeding referred to in Section.4(C)(3) hereof at the rate set forth in the
Notes) in coin or currency of the United States of America which at the time of
payment or demand therefor shall be legal tender for the payment of public and
private debts, (2) the full and prompt performance and observance by the Issuer
of each and all of the obligations, covenants and agreements required to be
performed or owned by the Issuer under the terms of the Notes and the Note
Agreements, and (3) the full and prompt payment, upon demand by any Noteholder
of all costs and expenses, legal or otherwise (including reasonable attorneys'
fees), if any, as shall have been expended or incurred in the protection or
enforcement of any right or privilege under the Notes or the Note Agreements or
in the protection or enforcement of any rights, privileges or liabilities under
this Guaranty or in any consultation or action in connection therewith or
herewith.
(b) The obligations of the Subsidiary Guarantor hereunder shall be
limited to the lesser of (i) the obligations of the Issuer guaranteed hereunder,
or (ii) a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "Fraudulent
Transfer Laws"), if and to the extent the Subsidiary Guarantor (or a trustee on
its behalf) has properly invoked the protections of the Fraudulent Transfer Laws
in each case after giving effect to all other liabilities of the Subsidiary
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guaranty of payment and performance and the Subsidiary
Guarantor hereby waives, to the fullest extent permitted by law, any right to
require that any action on or in respect of any Note or the Note Agreements be
brought against the Issuer or that resort be had to any direct or indirect
security for the Notes or for this Guaranty or any other remedy. Any Noteholder
may, at its option, proceed hereunder against the Subsidiary Guarantor in the
first instance to collect monies when due, the payment of which is guaranteed
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hereby, without first proceeding against the Issuer, the Parent Guarantor or any
other person and without first resorting to any direct or indirect security for
the Notes, or for this Guaranty or any other remedy. The liability of the
Subsidiary Guarantor hereunder shall in no way be affected or impaired by any
acceptance by any Noteholder of any direct or indirect security for, or other
guaranties of, any indebtedness, liability or obligation of the Issuer, the
Parent Guarantor or any other person to any Noteholder or by any failure, delay,
neglect or omission by the Noteholder to realize upon or protect any such
indebtedness, liability or obligation or any notes or other instruments
evidencing the same or any direct or indirect security therefor or by any
approval, consent, waiver, or other action taken, or omitted to be taken by any
such Noteholder.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) The Subsidiary Guarantor hereby consents and agrees that any
Noteholder or Noteholders from time to time, with or without any further notice
to or assent from the Subsidiary Guarantor, may, without in any manner affecting
the liability of the Subsidiary Guarantor under this Guaranty, upon such terms
and conditions as any such Noteholder may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify,
change, compromise, release or extend the duration of the time for the
performance or payment of any indebtedness, liability or obligation of the
Issuer, the Parent Guarantor or any other person secondarily or otherwise liable
for any indebtedness, liability or obligations of the Issuer on the Notes, or
waive any default with respect thereto, or waive, modify, amend or change any
provision of any other instruments and this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute
any and all property, of any nature and from whomsoever received, held by, or
for the benefit of, any such Noteholder as direct or indirect security for the
payment or performance of any indebtedness, liability or obligation of the
Issuer, the Parent Guarantor or any other person secondarily or otherwise liable
for any indebtedness, liability or obligation of the Issuer on the Notes; or
(3) settle, adjust or compromise any claim of the Issuer against
any other person secondarily or otherwise liable for any indebtedness, liability
or obligation of the Issuer on the Notes.
The Subsidiary Guarantor hereby ratifies and confirms any such
extension, renewal, change, sale, release, waiver, surrender, exchange,
modification, amendment, impairment, substitution, settlement, adjustment or
compromise and that the same shall be binding upon it, and hereby waives, to the
fullest extent permitted by law, any and all defenses, counterclaims or offsets
which it might or could have by reason thereof, it being understood that the
Subsidiary Guarantor shall at all times be bound by this Guaranty and remain
liable hereunder.
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(b) The Subsidiary Guarantor hereby waives, to the fullest extent
permitted by law: (1) notice of acceptance of this Guaranty by the Noteholders
or of the creation, renewal or accrual of any liability of the Issuer, present
or future, or of the reliance of such Noteholders upon this Guaranty (it being
understood that every indebtedness, liability and obligation described in
Section.1 shall conclusively be presumed to have been created, contracted or
incurred in reliance upon the execution of this Guaranty); (2) demand of payment
by any Noteholder from the Issuer, the Parent Guarantor or any other person
indebted in any manner on or for any of the indebtedness, liabilities or
obligations hereby guaranteed; and (3) presentment for the payment by any
Noteholder or any other person of the Notes or any other instrument, protest
thereof and notice of its dishonor to any party thereto and to the Subsidiary
Guarantor. The obligations of the Subsidiary Guarantor under this Guaranty and
the rights of any Noteholder to enforce such obligations by any proceedings,
whether by action at law, suit in equity or otherwise, shall not be subject to
any reduction, limitation, impairment or termination, whether by reason of any
claim of any character whatsoever or otherwise and shall not be subject to any
defense, set-off, counterclaim (other than any compulsory counterclaim),
recoupment or termination whatsoever.
(c) The obligations of the Subsidiary Guarantor hereunder shall be
binding upon the Subsidiary Guarantor and its successors and assigns, and shall
remain in full force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the
Notes, the Note Agreements or any other instruments relating thereto or any of
the terms of any thereof, the continuance of any obligation on the part of the
Issuer, the Parent Guarantor or any other person on the Notes or under the Note
Agreements or the power or authority or the lack of power or authority of the
Issuer to issue the Notes or execute and deliver the Note Agreements or to
perform any of its obligations thereunder or the existence or continuance of the
Issuer, the Parent Guarantor or any other person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the
performance by the Issuer, the Parent Guarantor or any other person of any
obligations of any kind or character whatsoever of the Issuer, the Parent
Guarantor or any other person (including, without limitation, the obligations
and undertakings of the Issuer, the Parent Guarantor or any other person under
the Notes or the Note Agreements); or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Issuer, the Parent Guarantor or any other person or
in respect of the property of the Issuer, the Parent Guarantor or any other
person or any merger, consolidation, reorganization, dissolution, liquidation or
winding up of the Issuer, the Parent Guarantor or any other person; or
(4) impossibility or illegality of performance on the part of the
Issuer, the Parent Guarantor or any other person of its obligations under the
Notes, the Note Agreements or any other instruments; or
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(5) in respect of the Issuer, the Parent Guarantor or any other
person, any change of circumstances, whether or not foreseen or foreseeable,
whether or not imputable to the Issuer, the Parent Guarantor or any other
person, or other impossibility of performance through fire, explosion, accident,
labor disturbance, floods, droughts, embargoes, wars (whether or not declared),
civil commotions, acts of God or the public enemy, delays or failure of
suppliers or carriers, inability to obtain materials, action of any Federal or
state regulatory body or agency, change of law or any other causes affecting
performance, or any other force majeure, whether or not beyond the control of
the Issuer, the Parent Guarantor or any other person and whether or not of the
kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, lien, order, process,
encumbrance or any other happening or event or reason, similar or dissimilar to
the foregoing, or any withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or liabilities of any
character, foreseen or unforeseen, and whether or not valid, incurred by or
against any person, or any claims, demands, charges or liens of any nature,
foreseen or unforeseen, incurred by any person, or against any sums payable
under this Guaranty, so that such sums would be rendered inadequate or would be
unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not
valid) of any court of any nation or of any political subdivision thereof or any
body, agency, department, official or administrative or regulatory agency of any
thereof or any other action, happening, event or reason whatsoever which shall
delay, interfere with, hinder or prevent, or in any way adversely affect, the
performance by any party of its respective obligations under the Notes, the Note
Agreements or any instrument relating thereto; or
(8) the failure of the Subsidiary Guarantor to receive any benefit
from or as a result of its execution, delivery and performance of this Guaranty;
or
(9) any failure or lack of diligence in collection or protection,
failure in presentment or demand for payment, protest, notice of protest, notice
of default and of nonpayment, any failure to give notice to the Subsidiary
Guarantor of failure of the Issuer, the Parent Guarantor or any other person to
keep and perform any obligation, covenant or agreement under the terms of the
Notes or the Note Agreements or failure to resort for payment to the Issuer, the
Parent Guarantor or any other person or to any other guaranty or to any
property, security, liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the
advance of additional money to the Issuer, the Parent Guarantor or any other
person, the renewal or extension of the Notes or amendments, modifications,
consents or waivers with respect to the Notes or the Note Agreements, or the
sale, release, substitution or exchange of any security for the Notes; or
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(11) any defense whatsoever that the Issuer, the Parent Guarantor or
any other person might have to the payment of the Notes (principal, premium, if
any, or interest), other than payment in cash thereof, or to the performance or
observance of any of the provisions of the Note Agreements, whether through the
satisfaction or purported satisfaction by the Issuer, the Parent Guarantor or
any other person of its debts due to any cause such as bankruptcy, insolvency,
receivership, merger, consolidation, reorganization, dissolution, liquidation,
winding-up or otherwise; or
(12) any act or failure to act with regard to the Notes, the Note
Agreements or anything which might vary the risk of the Subsidiary Guarantor; or
(13) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Subsidiary Guarantor in respect of the
obligations of the Subsidiary Guarantor under this Guaranty;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty that the obligations of the Subsidiary Guarantor shall be absolute and
unconditional and shall not be discharged, impaired or varied except by the
payment of the principal of, premium, if any, and interest on the Notes in
accordance with their respective terms whenever the same shall become due and
payable as provided in the Notes, at the place specified in and all in the
manner and with the effect provided in the Notes and the Note Agreements, as
amended or modified from time to time. Without limiting the foregoing, it is
understood that repeated and successive demands may be made and recoveries may
be had hereunder as and when, from time to time, the Issuer shall default under
the terms of the Notes or the Note Agreements and that notwithstanding recovery
hereunder for or in respect of any given default or defaults by the Issuer under
the Notes or the Note Agreements, this Guaranty shall remain in full force and
effect and shall apply to each and every subsequent default.
(d) All rights of any Noteholder may be transferred or assigned at
any time and shall be considered to be transferred or assigned at any time or
from time to time upon the transfer of such Note whether with or without the
consent of or notice to the Subsidiary Guarantor under this Guaranty or the
Issuer.
(e) To the extent of any payments made under this Guaranty, the
Subsidiary Guarantor shall be subrogated to the rights of the Noteholder upon
whose Note such payment was made, but the Subsidiary Guarantor covenants and
agrees that such right of subrogation shall be subordinate in right of payment
to the rights of any Noteholder for which full payment has not been made or
provided for and, to that end, the Subsidiary Guarantor agrees not to claim or
enforce any such right of subrogation or any right of set-off or any other right
which may arise on account of any payment made by the Subsidiary Guarantor in
accordance with the provisions of this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any
Noteholder or Noteholders against the Issuer or the Parent Guarantor, whether or
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not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer or the Parent Guarantor directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right unless and until 366 days after all of the Notes and all
other sums due and payable under the Note Agreements have been fully paid and
discharged. If any amount shall be paid to the Subsidiary Guarantor in violation
of the preceding sentence at any time prior to the indefeasible cash payment in
full of the Notes and all other amounts payable under the Note Agreements and
this Guaranty, such amounts shall be held in trust for the benefit of the
Noteholders and shall forthwith be paid to the Noteholders to be credited and
applied to the amounts due or to become due with respect to the Notes and all
other amounts payable under the Note Agreements and this Guaranty, whether
matured or unmatured.
(f) The Subsidiary Guarantor agrees that to the extent the Issuer,
the Parent Guarantor or any other person makes any payment on any Note, which
payment or any part thereof is subsequently invalidated, voided, declared to be
fraudulent or preferential, set aside, recovered, rescinded or is required to be
retained by or repaid to a trustee, liquidator, receiver, or any other person
under any bankruptcy code, common law, or equitable cause, then and to the
extent of such payment, the obligation or the part thereof intended to be
satisfied shall be revived and continued in full force and effect with respect
to the Subsidiary Guarantor's obligations hereunder, as if said payment had not
been made. The liability of the Subsidiary Guarantor hereunder shall not be
reduced or discharged, in whole or in part, by any payment to any Noteholder
from any source that is thereafter paid, returned or refunded in whole or in
part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity, or fraud asserted by any account
debtor or by any other person.
(g) No Noteholder shall be under any obligation (1) to marshal any
assets in favor of the Subsidiary Guarantor or in payment of any or all of the
liabilities of the Issuer under or in respect of the Notes or the obligations of
the Subsidiary Guarantor hereunder or (2) to pursue any other remedy that the
Subsidiary Guarantor may or may not be able to pursue itself and that may
lighten the Subsidiary Guarantor's burden or any right to which the Subsidiary
Guarantor hereby expressly waives.
(h) The obligations of the Subsidiary Guarantor with respect to the
guaranty and all other obligations under this Guaranty of the Subsidiary
Guarantor are direct and unsecured obligations of the Subsidiary Guarantor
ranking pari passu as against the assets of the Subsidiary Guarantor and pari
passu with all other present and future Indebtedness of the Subsidiary Guarantor
which is not expressed to be subordinate or junior in rank to any other
Indebtedness of the Subsidiary Guarantor (except to the extent that the
foregoing is not true by virtue of, and solely by virtue of, Liens expressly
permitted by the Note Agreements securing other Indebtedness insofar as such
Indebtedness represents a prior claim in respect of the property or assets
secured by such permitted Lien).
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SUBSIDIARY GUARANTOR.
The Subsidiary Guarantor represents and warrants that the
representations and warranties set forth in Exhibit B-3 of the Note Agreements
are true and correct with respect to the Subsidiary Guarantor as of the date
hereof and are incorporated by reference with the same force and effect as
though herein set forth in full.
SECTION 6. SUBSIDIARY GUARANTOR COVENANTS.
Section 6.1. Compliance with Law. The Subsidiary Guarantor will,
and will cause each of its subsidiaries to, comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws and ERISA, and will obtain and maintain
in effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 6.2. Insurance. The Subsidiary Guarantor will, and will
cause each of its subsidiaries to, maintain, with financially sound and
reputable insurers, insurance with respect to their respective properties and
businesses against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations engaged in the same
or a similar business and similarly situated.
Section 6.3. Maintenance of Properties. The Subsidiary Guarantor
will, and will cause each of its subsidiaries to, maintain and keep, or cause to
be maintained and kept, their respective properties in good repair, working
order and condition (other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted at all times;
provided that this Section shall not prevent the Subsidiary Guarantor or any
subsidiary thereof from discontinuing the operation and the maintenance of any
of its properties if such discontinuance is desirable in the conduct of its
business and the Subsidiary Guarantor has concluded that such discontinuance
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 6.4. Payment of Taxes and Claims. The Subsidiary Guarantor
will, and will cause each of its subsidiaries to, file all tax returns required
to be filed in any jurisdiction and to pay and discharge all taxes shown to be
due and payable on such returns and all other taxes, assessments, governmental
charges, or levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of the
Guaranty or any subsidiary thereof; provided that neither the Subsidiary
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Guarantor nor any subsidiary need pay any such tax or assessment or claims if
(a) the amount, applicability or validity thereof is contested by the Guaranty
or such subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Guaranty or a subsidiary thereof has established adequate
reserves therefor in accordance with GAAP on the books of the Guaranty or such
subsidiary or (b) the nonpayment of all such taxes, assessments and claims in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
Section 6.5. Corporate Existence, Etc. Subject to Section 5.12 of
the Note Agreements, the Subsidiary Guarantor will, and will cause each of its
subsidiaries to, at all times preserve and keep in full force and effect its
corporate existence and all rights and franchises of the Subsidiary Guarantor
and its subsidiaries unless, in the good faith judgment of the Subsidiary
Guarantor, the termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise could not, individually or
in the aggregate, have a Material Adverse Effect.
Section 6.6. Nature of Business. Neither the Subsidiary Guarantor
nor any subsidiary thereof will engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis, which would then
be engaged in by the Subsidiary Guarantor and its subsidiaries would be
substantially changed from the general nature of the business engaged in by the
Subsidiary Guarantor on the date of this Agreement.
Section 6.7. Guaranty to Rank Pari Passu. The Subsidiary Guarantor
will keep and maintain the obligations of the Subsidiary Guarantor with respect
to this Guaranty as direct obligations of the Subsidiary Guarantor ranking pari
passu as against the assets of the Subsidiary Guarantor with all other present
or future Debt of the Subsidiary Guarantor except to the extent such Debt is
secured by a Lien permitted under the Note Agreements or such Debt is
subordinated to the obligations of this Guaranty.
SECTION 7. SUBMISSION TO JURISDICTION.
Any legal action or proceeding with respect to this Guaranty or any
document related thereto may be brought in the courts of the United States of
America for the Southern District of New York and, by execution and delivery of
this Guaranty, the Subsidiary Guarantor hereby accepts for itself and in respect
of its property generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts, and the Subsidiary Guarantor waives any objection which it
may have based on improper venue or forum non conveniens to the conduct of any
proceeding in any such court and waives personal service of any and all process
upon it, and consents that all such service of process be made by delivery to it
at the address set forth in Section 8 or to its agent referred to below at such
agent's address set forth below and that service so made shall be deemed to be
completed upon actual receipt; provided, that a copy of such service of process
shall be delivered to the Subsidiary Guarantor as provided in SS.8 hereof. The
Subsidiary Guarantor hereby irrevocably appoints CT Corporation System, with an
office at 1633 Broadway, New York, New York 10019 as its agent for the purpose
of accepting service of any process within the State of New York. Nothing
contained in this Section 7 shall affect the right of any Noteholder to serve
legal process in any other manner permitted by law or to bring any action or
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proceeding in the courts of any jurisdiction against the Subsidiary Guarantor or
to enforce a judgment obtained in the courts of any other jurisdiction.
SECTION 8. NOTICES.
All communications provided for herein shall be in writing, and (a) if
to the Issuer or the Subsidiary Guarantor, delivered or mailed prepaid by
registered or certified mail or express commercial air courier, or by facsimile
communication (prompt express commercial air courier delivery of hard copy to
follow such facsimile communication), or (b) if to any Noteholder, delivered or
mailed prepaid by express commercial air courier, or by facsimile communication
(prompt express commercial air courier delivery of hard copy to follow such
facsimile communication), in any case at the addresses set forth below, or to
such other address as such person may designate to the other persons named below
by notice given in accordance with this Section:
If to any Noteholder: To its address for notices
appearing in Schedule I to the
Note Agreements, as the case may be
If to the Subsidiary Guarantor: 2555 Ellsmere Avenue
Norfolk, Virginia 23513
Attention: Chief Financial Officer
If to the Issuer: 2555 Ellsmere Avenue
Norfolk, Virginia 23513
Attention: Chief Financial Officer
SECTION 9. AMENDMENTS AND MODIFICATIONS; SOLICITATION OF NOTEHOLDERS.
(a) This Guaranty may only be amended and/or modified by an
instrument in writing signed by the Subsidiary Guarantor and by the Noteholder
or Noteholders of at least 66-2/3% in aggregate principal amount of the Notes
then outstanding; provided, that without the written consent of the Noteholders
of all of the Notes then outstanding, no such waiver, modification, alteration
or amendment shall be effective which will reduce the scope of the guaranty set
forth in this Guaranty or amend the requirements of Sections 2, 3 or 4 hereof or
amend this Section 9. No such amendment or modification shall extend to or
affect any obligation not expressly amended or modified or impair any right
consequent thereon.
(b) The Subsidiary Guarantor agrees that it will not solicit, request
or negotiate for or with respect to any proposed waiver or amendment of any of
the provisions of this Guaranty, the Note Agreements or the Notes unless each
Noteholder (irrespective of the amount of Notes then owned by it) shall be
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informed thereof by the Subsidiary Guarantor and shall be afforded the
opportunity of considering the same for a period of not less than 30 days and
shall be supplied by the Subsidiary Guarantor with a brief statement regarding
the reasons for any such proposed waiver or amendment, a copy of the proposed
waiver or amendment and such other information regarding such amendment or
waiver as any Noteholder shall reasonably request to enable it to make an
informed decision with respect thereto. Executed or true and correct copies of
any waiver or amendment effected pursuant to the provisions of this Section 9
shall be delivered by the Subsidiary Guarantor to each Noteholder of outstanding
Notes within 30 days following the date on which the same shall have been
executed and delivered by the holder or holders of the requisite percentage of
the outstanding Notes. The Subsidiary Guarantor agrees that it will not,
directly or indirectly, pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, to any Noteholder
as consideration for or as an inducement to the entering into by any Noteholder
of any waiver or amendment of any of the terms and provisions of this Guaranty,
the Note Agreements or the Notes unless such remuneration is concurrently paid,
on the same terms, ratably to the Noteholders of all of the Notes then
outstanding.
SECTION 10. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Noteholder is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Noteholder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Noteholder to physically produce
its Note in any proceedings instituted by it or to give any notice, other than
such notice as may be herein expressly required.
(b) In case any one or more of the provisions contained in this
Guaranty shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby.
(c) This Guaranty shall be binding upon the
undersigned Subsidiary Guarantor and its respective successors and
assigns and shall inure to the benefit of each Noteholder and its
successors and assigns so long as its Note remains outstanding and
unpaid.
(D) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH NEW YORK LAW, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
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SECTION 11. INDEMNITY.
To the fullest extent of applicable law, the Subsidiary Guarantor shall
indemnify and save each Noteholder harmless from and against any losses which
may arise by virtue of any of the obligations hereby guaranteed being or
becoming for any reason whatsoever in whole or in part void, voidable, contrary
to law, invalid, ineffective or otherwise unenforceable by the Noteholders or
any of them in accordance with its terms (all of the foregoing collectively, an
"Indemnifiable Circumstance"). For greater certainty, these losses shall include
without limitation all obligations hereby guaranteed which would have been
payable by the Issuer but for the existence of an Indemnifiable Circumstance;
provided, however, that the extent of the Subsidiary Guarantor's aggregate
liability under this Section.11 shall not at any time exceed the amount (but for
any Indemnifiable Circumstance) otherwise guaranteed pursuant to Section.2.
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IN WITNESS WHEREOF, the Subsidiary Guarantor has caused this Guaranty
Agreement to be duly executed by an authorized officer as of the 30th day of
April, 1997.
Signatures.
DOLLAR TREE MANAGEMENT, INC.
By: /s/ Macon Brock, Jr.
Title: Chief Executive Officer, President
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