TENDER AGENCY AGREEMENT
THIS TENDER AGENCY AGREEMENT (the "Agreement" or "this Agreement") is
made and entered into as of May 1, 1998, by and between DOLLAR TREE
DISTRIBUTION, INC., a Virginia corporation (the "Company"), and AMSOUTH BANK, an
Alabama banking corporation, acting as trustee under the Indenture hereinafter
described (in such capacity, the "Trustee") and AMSOUTH BANK, acting as tender
agent under the Indenture (in such capacity, the "Tender Agent");
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Trust Indenture dated as of May
1, 1998 (the "Indenture") between Mississippi Business Finance Corporation (the
"Issuer"), and the Trustee, the Issuer has issued its Taxable Variable Rate
Demand Revenue Bonds (Dollar Tree Distribution, Inc. Project) Series 1998 (the
"Bonds") in the principal amount of up to $19,000,000, the proceeds of which
will be loaned by the Issuer to the Company pursuant to a Loan Agreement dated
as of May 1, 1998 between the Company and the Issuer (the "Loan Agreement"), for
the purposes stated therein; and
WHEREAS, the Company has determined that it is desirable for the
registered owners of the Bonds to have the option to tender their Bonds for
purchase pursuant to the terms of the Indenture through a tender agent and has
agreed to enter into this Agreement for the benefit of the registered owners of
the Bonds;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and other valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
RULES OF INTERPRETATION
Section 1.1 General. Terms used in this Agreement which are not
defined herein have the meanings assigned to them in the Indenture and Loan
Agreement, unless the context or use indicates another or different meaning or
intent. Definitions shall be equally applicable to both the singular and plural
forms of any of the words and terms therein or herein defined. The words
"herein" and "hereof" and words of similar import, without reference to any
particular article, section or subsection, refer to this Agreement as a whole
rather than to any particular article, section or subsection hereof. The
headings of articles and sections herein are for convenience only and shall not
affect the construction hereof.
Section 1.2 Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of Mississippi.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Company's Representations and Warranties. The Company
confirms its representations and warranties contained in the Loan Agreement and
hereby represents and warrants as of the date of execution and delivery of this
Agreement that it has full power and authority to execute, deliver and perform
this Agreement.
Section 2.2 Tender Agent's Representations and Warranties. The Tender
Agent hereby represents and warrants as of the date of execution and delivery of
this Agreement that:
(a) It is an Alabama banking corporation with full legal right,
power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby and, by
proper corporate action, it has duly authorized the
execution, delivery and performance of this Agreement;
(b) It meets all criteria of Section 1202 of the Indenture with
respect to the qualifications of a bank or trust company to
act as Tender Agent under the Indenture;
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein
will not conflict with or constitute on its part a material
breach of or a default under its charter or bylaws or any
statute, indenture, mortgage, deed of trust, lease or other
agreement or instrument to which it is a party or by which
it or its properties are bound or secured, or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Tender Agent or any of its
activities or properties; and
(d) This Agreement has been duly authorized, executed and
delivered by the Tender Agent and constitutes the legal,
valid and binding obligation of the Tender Agent,
enforceable in accordance with its terms.
Section 2.3 Trustee's Representations and Warranties. The Trustee
hereby confirms its representations and warranties contained in the Indenture
and represents and warrants as of the date of execution and delivery of this
Agreement that it has full power and authority to execute and deliver this
Agreement.
ARTICLE III
PURCHASE OF TENDERED BONDS
Section 3.1 Creation of Bond Purchase Fund.
(a) There is hereby created and established with the Tender
Agent a trust fund designated "Mississippi Business Finance
Corporation Taxable Variable Rate Demand Revenue Bonds
(Dollar Tree Distribution, Inc. Project) Series 1998 Bond
Purchase Fund" (the
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"Bond Purchase Fund"). There are also hereby created and
established two separate accounts in such fund designated as
the "Remarketing Account" and the "Bank Account". Neither
the Company nor any affiliate of the Company may deposit any
funds in the Bond Purchase Fund.
For purposes of this Agreement, the term an "affiliate" of
the Company shall mean any Person that directly, or
indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, the
Company, provided that neither the Remarketing Agent nor the
Tender Agent shall be deemed to be an affiliate of the
Company by virtue of serving in the capacities to be served
by them hereunder or under the Remarketing Agreement.
(b) Any moneys received by the Tender Agent from the Remarketing
Agent or other placement agent on behalf of purchasers
(other than the Credit Facility Issuer) of the Bonds shall
be deposited in the Remarketing Account of the Bond Purchase
Fund and paid out in accordance with Section 302 of the
Indenture. No funds deposited in the Remarketing Account
shall have resulted either directly or indirectly from funds
provided by or the sale of Bonds to the Company, the Issuer
or an affiliate of the Company.
(c) Any moneys received by the Tender Agent from the Bank
pursuant to draws under the Letter of Credit related to the
Bonds (the "Letter of Credit") for the purchase of Bonds
shall be deposited in the Bank Account of the Bond Purchase
Fund and paid out in accordance with Section 302 of the
Indenture.
Section 3.2 Deposit of Bonds. The Tender Agent shall hold all Bonds
delivered to it pursuant to Section 302 of the Indenture in trust for the
benefit of the respective registered owners which shall have so delivered such
Bonds until such Bonds shall have been delivered by the Tender Agent pursuant to
Section 303 of the Indenture.
Section 3.3 Remarketing of Bonds.
(a) No later than the close of business on the Business Day on
which it receives an Optional Tender Notice with respect to
any Bonds which are Tendered Bonds, the Tender Agent shall
notify the Remarketing Agent and the Company in writing if
requested or by telephone, telegram, telex or other
electronic or wire transmission, specifying the principal
amount of such Tendered Bonds, the name of the Registered
Owner thereof and the Variable Rate Purchase Date specified
in such Optional Tender Notice.
(b) Not later than 10:30 a.m. on the Variable Rate Purchase Date
or the Conversion Date for the Bonds (the "Conversion Date")
as the case may be, the Tender Agent shall notify the
Trustee by telephone, telegram wire or otherwise of the
amount of any drawing under the Letter of Credit necessary
to purchase the Tendered Bonds, and the Bank (upon receipt
of the documentation required by, and in the form prescribed
by, the Letter of Credit prior to 11:00 a.m. on the Variable
Rate Purchase Date or the Conversion Date, as the case may
be) shall wire or otherwise deliver funds drawn under the
Letter of Credit in the appropriate amount to the Trustee to
be deposited into the
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Bank Account of the Bond Purchase Fund, which funds shall be
received by the Tender Agent prior to 2:30 p.m. on the
Variable Rate Purchase Date or the Conversion Date, as the
case may be.
Section 3.4 Payment of Purchase Price. The payment by the Tender
Agent of the purchase price of Bonds delivered to the Tender Agent pursuant to
Section 202A or 203 of the Indenture shall be made solely from funds made
available to the Tender Agent from the proceeds of the remarketing of such Bonds
by the Remarketing Agent or pursuant to draws by the Trustee under the Letter of
Credit, as provided in the Indenture and the Remarketing Agreement. The Trustee
shall cause arrangements satisfactory to the Trustee and the Tender Agent to be
made and thereafter continued whereby funds from the sources described in
Section 302 of the Indenture will be made available to the Tender Agent for the
timely payment of the purchase price of the Bonds. The Tender Agent shall have
no responsibility with respect to the source of any funds provided to it for the
purpose of paying the purchase price of the Bonds. The Tender Agent shall have
no responsibility to determine the amount representing accrued interest which
may be payable in connection with the purchase of Bonds and may rely
conclusively on the computation of such accrued interest by the Trustee pursuant
to the Indenture. The Tender Agent shall have no obligation to expend its own
funds in connection with any such purchase, and shall have no obligation to pay
the purchase price in any type of funds other than that received by the Tender
Agent for such purpose as aforesaid. The Tender Agent shall notify the Trustee
if, at the time designated for the purchase of Bonds, the Tender Agent shall
have insufficient moneys for payment of the purchase price thereof. Any payment
of purchase price required to be made pursuant to this Agreement shall be made
to the Registered Owner of Bonds to whom such purchase price payment is due at
the principal office of the Tender Agent upon presentation and surrender of such
Bonds.
Section 3.5 Delivery of Purchased Bonds, etc.
(a) The Tender Agent shall:
(i) make available any Bonds purchased with moneys from
the Remarketing Account of the Bond Purchase Fund
as described in Section 302(a) of the Indenture, at
the principal office of the Tender Agent, to or
upon the order of the purchasers thereof; and
(ii) deliver any Bonds purchased with moneys from the
Bank Account of the Bond Purchase Fund described in
Section 302(a) of the Indenture to or upon the
order of the Bank or its designee.
(b) Bonds delivered as provided in this Section 3.5 shall be
registered in the manner directed by the recipient thereof
at least twenty-four hours prior to the time of delivery
thereof; provided that in the case of any Bonds delivered in
accordance with clause (i) of Section 3.5(a) hereof, such
Bonds shall be registered in accordance with instructions
furnished by the Remarketing Agent or other placement agent
to the Tender Agent at least twenty-four hours prior to the
time when such Bonds are required to be delivered.
Section 3.6 Delivery of Proceeds of Sale. The proceeds of the sale of
any Bonds delivered or deemed delivered to the Tender Agent or the Trustee
pursuant to Section 202A or 203 of the Indenture, to the extent not required to
pay the purchase price thereof in accordance with Section 302 of the Indenture,
shall be paid as directed by the Company. In the event the Remarketing Agent
shall have
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remarketed any Bonds purchased with funds from the Bank Account of the Bond
Purchase Fund and pledged to the Bank ("Pledged Bonds"), upon receipt of such
Pledged Bonds the Tender Agent shall deliver such Pledged Bonds to the
purchasers thereof, in accordance with the instructions received by the Tender
Agent from the Remarketing Agent, and the proceeds of the sale of such Pledged
Bonds shall be delivered to the Bank on behalf of the Company as reimbursement
under the Reimbursement Agreement.
Section 3.7 Terms of Indenture Incorporated. Notwithstanding any other
provisions contained herein, the Tender Agent shall comply with the provisions
of the Indenture insofar as they set forth duties and responsibilities of the
Tender Agent, including without limitation Section 302 thereof. All of such
provisions are hereby incorporated by this reference. In the event of any
conflict between the provisions of this Agreement and the Indenture, the
provisions of the Indenture shall control.
ARTICLE IV
OBLIGATIONS OF THE COMPANY
Section 4.1 Compensation.
(a) The Company shall pay the Tender Agent such fees and charges
as shall be agreed upon between them from time to time.
(b) The Company shall reimburse the Tender Agent for all
reasonable out-of-pocket expenses of the Tender Agent
including, but not limited to counsel fees, special
stationery, checks, postage, wire tender of funds, shipping,
insurance, telecommunications and such other expenses
associated with the giving of notices and messenger delivery.
Section 4.2 Indemnification.
(a) The Company shall, to the fullest extent permitted by law,
indemnify and hold the Tender Agent harmless from any and all
liability, losses, damages, costs and expenses of any nature
(including interest and reasonable counsel fees and
disbursements) arising out of or in connection with its
duties, or those of its employees or agents arising from their
performance under this Agreement and the Indenture, except for
liabilities, losses, damages, costs, expenses and fees arising
out of the gross negligence or willful misconduct of the
Tender Agent or its employees or agents.
(b) The Tender Agent shall indemnify and hold harmless the Trustee
and the Company from negligent acts or acts resulting from
willful misconduct of the Tender Agent in the performance or
non-performance of the duties of the Tender Agent under this
Agreement and the Indenture.
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ARTICLE V
THE TENDER AGENT
Section 5.1 Tender Agent's Performance; Duty of Care. The Tender Agent
consents and agrees to perform and comply with all of the terms and provisions
on its part contained in this Agreement and the Indenture. The duties and
obligations of the Tender Agent shall be determined solely by the express
provisions of this Agreement and the Indenture and no implied covenant or
obligation shall be read into this Agreement or the Indenture against the Tender
Agent.
Section 5.2 Waiver of Rights to Certain Funds. Any provision of this
Agreement or the Indenture or any statute to the contrary notwithstanding, the
Tender Agent hereby waives any rights to, or liens for, its fees, charges and
expenses for services hereunder to the Trustee or from funds provided by the
Company for the payment to registered owners of the purchase price of Tendered
Bonds. The Tender Agent agrees that it will be reimbursed and compensated for
its fees, charges and expenses for acting under and pursuant to this Agreement
only from payments to be made by the Company pursuant to Section 4.1 hereof.
Section 5.3 Maintenance of Books and Records. The Tender Agent shall
keep such books and records as shall be consistent with prudent industry
practice and as required by the Trustee and will make such books and records
available for inspection by the Trustee, the Company and the Bank during regular
business hours.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Term of Agreement. This Agreement shall remain in
full force and effect until the close of business on the earlier of:
(a) such date as all of the Bonds are no longer Outstanding; or
(b) the Conversion Date, provided, that in each case, the Company
and the Tender Agent shall have fulfilled their respective
obligations hereunder, whereupon this Agreement shall
terminate.
Section 6.2 Amendments.
(a) No amendment, modification or waiver of any provision of this
Agreement shall be effective unless the same shall be in
writing and signed by the parties hereto. Any such amendment,
modification or waiver shall be effective only in the specific
instance and for the purpose for which given.
(b) The Company agrees that it will not consent to any amendment
of any provision in the Indenture affecting the duties, rights
or responsibilities of the Tender Agent without the prior
written consent of the Tender Agent.
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Section 6.3 Notices, Etc. Unless otherwise specified herein, any
notices, requests or other communications given or made hereunder or pursuant
hereto shall be made in writing and shall be deemed to have been validly given
or made when delivered or received. Any such notice, request or other
communication may be given by hand delivery, telex, telecopy, telegraph or mail
(registered or certified mail, return receipt requested and postage prepaid) and
shall be sent to the following addresses or numbers:
(a) If to the Company:
Dollar Tree Distribution, Inc.
c/o Dollar Tree Stores, Inc.
500 Volvo Parkway
Chesapeake, Virginia 23320
Attention: Corporate Controller
Telephone No.: (757) 321-5018
Telecopier No.: (757) 321-5111
With a copy to :
Hofheimer Nusbaum, P.C.
Dominion Tower, Suite 1700
999 Waterside Drive
Post Office Box 3460
Norfolk, Virginia 23514-3460
Attention: W.A. Old, Jr.
(b) If to the Trustee:
AmSouth Bank
1901 Sixth Avenue North, Suite 730
Birmingham, Alabama 35203
Attention: Corporate Trust Department
Telephone No.: (205) 326-5384
Telecopier No.: (205) 581-7661
(c) If to the Remarketing Agent:
First Union National Bank
Capital Markets Group
One First Union Center
301 South College
Charlotte, North Carolina 28288
Attention: Hal A. Telimen
Telephone No.: (704) 374-4065
Telecopier No.: (704) 388-3694
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(d) If to the Bank:
First Union National Bank
Two First Union Center
Charlotte, North Carolina 28288
Attention: International Operations
Telephone No.: 704-374-3091
Telecopier No.: 704-383-6984
Telex No.:
(e) If to the Tender Agent:
AmSouth Bank
1901 Sixth Avenue North, Suite 730
Birmingham, Alabama 35203
Attention: Corporate Trust Department
Telephone No.: (205) 326-5384
Telecopier No.: (205) 581-7661
All notices, requests or other communications given to the Company, the
Trustee, the Remarketing Agent and the Bank may be given in any manner permitted
in the Indenture, the Remarketing Agreement and the Reimbursement Agreement. All
oral notices, requests or other oral communications permitted hereunder shall,
as soon as practicable thereafter, be confirmed in writing.
Section 6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but both or all of
which, when taken together, shall constitute but one instrument, and shall
become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall be delivered to the Trustee, the
Company and the Tender Agent.
Section 6.5 Successors and Assigns. The rights, duties and obligations
of the Company, the Trustee and the Tender Agent shall inure, without further
act, to their respective successors and permitted assigns; provided, however,
that the Tender Agent may not assign its obligations hereunder without the prior
written consent of the Company and that such successor or permitted assign shall
be either a bank or a trust company meeting the criteria set forth in Section
1202 of the Indenture.
Section 6.6 Time. All references herein to time shall be to Norfolk,
Virginia time.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed in its name and behalf by their duly authorized
officers as of the date above written.
Dollar Tree Distribution, Inc.
By: /s/ H. Ray Compton
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Title: Executive Vice President
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AmSouth Bank,
as Tender Agent
By: /s/ Ann M. Harris
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Title: Vice President
AmSouth Bank,
as Trustee
By: /s/ Ann M. Harris
-------------------------
Title: Vice President
[Signature Page of Tender Agency Agreement]
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