REMARKETING AGREEMENT
THIS AGREEMENT dated as of May 1, 1998, is by and between DOLLAR TREE
DISTRIBUTION, INC., a Virginia corporation (the "Company"), and FIRST UNION
NATIONAL BANK, a national banking association, acting through its Capital
Markets Group (in such capacity, the "Remarketing Agent");
W I T N E S S E T H:
WHEREAS, Mississippi Business Finance Corporation (the "Issuer")
intends to issue and sell its Bonds, designated Mississippi Business Finance
Corporation Incremental Taxable Variable Rate Demand Revenue Bonds (Dollar Tree
Distribution, Inc. Project) Series 1998 (the "Bonds") in the aggregate principal
amount of up to $19,000,000 pursuant to a Trust Indenture dated as of May 1,
1998 (the "Indenture") between the Company and AmSouth Bank, as Trustee (the
"Trustee"), and to loan the proceeds thereof to the Company pursuant to the
provisions of and for the purposes described in the Loan Agreement dated as of
May 1, 1998, between the Issuer and the Company (the "Loan Agreement"); and
WHEREAS, during the Variable Rate Period (as defined in the Indenture)
for any Bonds the Company agrees to compensate the Remarketing Agent for
remarketing such Bonds from time to time as provided under the Indenture and
hereunder;
NOW, THEREFORE, for and in consideration of the covenants herein made,
the parties agree as follows:
Section 1. Appointment and Duties; Definitions.
(a) The Company hereby appoints the Capital Markets Group of First
Union National Bank to serve as Remarketing Agent under the Indenture, and First
Union National Bank, acting through its Capital Markets Group, hereby accepts
such appointment and agrees to perform the duties of the Remarketing Agent under
Sections 202(d), 301, 302, 303, 304 and 1201 of the Indenture in accordance with
the terms of the Indenture and this Agreement. The Remarketing Agent shall
comply with the provisions of the Indenture insofar as they set forth duties and
responsibilities of the Remarketing Agent and all of such provisions are hereby
incorporated herein 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, except that the provisions of Sections 5 and 8 hereof shall
supersede the Indenture in the event of any conflict.
(b) Unless a different meaning clearly appears from the context, all
words and terms used herein shall have the respective meanings assigned to such
terms in the Indenture.
Section 2. Duties of the Remarketing Agent.
(a) During the Variable Rate Period for any Bonds, upon receipt of
notification from the Tender Agent of a demand to purchase any such Bonds from a
Bondholder as provided in the Indenture until the date of such purchase
specified in such notice, and thereafter, the Remarketing Agent will use its
best efforts to arrange for the sale of such Bonds at 100% of the principal
amount thereof, plus accrued and unpaid interest to the date of such sale (a
"Remarketing").
(b) The Remarketing Agent agrees to keep such books and records as
shall be consistent with prudent industry practice and to make those books and
records available for inspection by the Issuer, the Trustee and the Company at
all reasonable times.
(c) Conditions. Any placement pursuant to paragraph (a) of this Section
2 shall be subject to the following conditions:
(1) The Purchaser shall be a person or an institution that
customarily acquires securities with characteristics similar to the
Bonds in the ordinary course of its business and that is an "accredited
investor" as defined in Rule 501 of Regulation D of the Securities Act
of 1933, as amended from time to time (the "Securities Act"), under any
of the following categories at the time of the sale of the Bonds to
that person or institution:
(i) a bank, as defined in Section 3(a)(2) of the
Securities Act, acting in its individual or fiduciary
capacity;
(ii) a broker-dealer registered pursuant to Section
15 of the Securities Act of 1934, as amended (the "Exchange
Act");
(iii)an insurance company, as defined in Section 2(13)
of the Securities Act;
(iv) an investment company, as defined under the
Investment Company Act of 1940;
(v) a natural person whose individual net worth, or
joint net worth with such person's spouse, at the time of his
or her purchase exceeds $1,000,000;
(vi) a natural person who had an individual income in
excess of $200,000 in each of the two most recent years or
joint income with the person's spouse in excess of $300,000 in
each of those years and who has a reasonable expectation of
reaching the same income level in the current year;
(vii) a trust with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Bonds, whose purchase is directed by a sophisticated
person as described in Rule 506(b)(2)(ii) promulgated under
the Securities Act; or
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(viii) any entity in which all the owners are
accredited investors.
(2) The Bonds will be offered solely to such Purchaser for
investment for its own account and not with a view to dividing or
participating its interests with others or for resale in connection
with a distribution of all or any portion of the Bonds; provided,
however, that such Purchaser shall at all times have the right to
resell or otherwise dispose of all or any part of the Bonds as
permitted by law and subject to all applicable state and federal laws,
rules and regulations (including, but not limited to, the right to have
the Bonds purchased at the times and in the manner set forth in the
Indenture).
(d) Suspension of Placement. The Remarketing Agent will suspend
placement solicitations when requested by the Company. Bonds will not be placed
by the Remarketing Agent after it has been notified by the Trustee or the Credit
Facility Trustee of the occurrence or continuance of any Event of Default under
the Indenture which has resulted in an acceleration (which has not been
rescinded or annulled) of the Bonds pursuant to the Indenture.
(e) Compliance With Law. The Remarketing Agent agrees that it will
perform its obligations hereunder and as set forth in the Indenture in respect
of the Remarketing in accordance with and as permitted by applicable federal and
state law.
Section 3. Fees.
(a) The Company shall pay to the Remarketing Agent, in connection with
serving as Remarketing Agent, a fee of 1/10 of 1% per annum, based on a 365-day
year and the actual number of days elapsed, multiplied by (i) during the first
year following the Closing Date, $10,000,000; (ii) during the second year
following the Closing Date, the aggregate principal amount of Bonds Outstanding
on the first anniversary of the Closing Date, but if such aggregate principal
amount is reduced during such second year, the Remarketing Agent shall return to
the Company at the end of the second year that portion of the fee exceeding what
the fee would have been for the second year had it been based on the weighted
average aggregate principal amount of Bonds Outstanding; and (iii) thereafter,
the aggregate principal amount of Bonds Outstanding. In each case, the fee will
be payable annually in advance on the Closing Date and on each anniversary
thereof, the first such payment to be delivered on the Closing Date in the
amount of $10,000. If the Remarketing Agent resigns pursuant to Section 8
hereof, the Remarketing Agent shall refund to the Company the unearned balance
of fees paid to the Remarketing Agent by the Company for the year in which such
resignation occurs.
(b) The Company also agrees to reimburse the Remarketing Agent for all
reasonable expenses incurred in connection with any Remarketing of the Bonds,
including without limitation, attorneys' fees and disbursements.
Section 4. Disclosure. The Company agrees to furnish the Remarketing
Agent with as many copies of the Placement Memorandum (as defined in the
Placement Agreement) as the Remarketing Agent may reasonably request; the
Company agrees to furnish the Remarketing
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Agent with such other information as the Remarketing Agent deems necessary or
useful from time to time in connection with the Remarketing of the Bonds in
accordance with the terms hereof. The Company consents to the use of the
Placement Memorandum (including any amendments, modifications and supplements
thereto) and all other documents and other information provided to the
Remarketing Agent by the Company for the purpose of remarketing the Bonds in
accordance with the terms hereof. If at any time during the term of this
Agreement any event or condition known to the Company relating to or affecting
the Company, the Issuer, the Bonds or any document or agreement relating to the
Bonds or executed in connection with the issuance or original placement thereof
shall occur that might affect the accuracy or completeness of any material
statement of fact contained in the Placement Memorandum, the Company shall
promptly notify the Remarketing Agent in writing of the circumstances and
details of such event or condition. The Company will assist the Remarketing
Agent, at the Company's expense, in the amendment of the Placement Memorandum
from time to time in order to assure the accuracy and completeness of the
Placement Memorandum. Unless the Company notifies the Remarketing Agent of any
such event or condition affecting the accuracy or completeness of the Placement
Memorandum as set forth in this Section 4, the Remarketing Agent may assume that
the Placement Memorandum or Disclosure Document is accurate and complete.
Section 5. Indemnity.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent, and its directors, officers, employees, agents and any Controlling Person
of the Remarketing Agent within the meaning of Section 15 of the Securities Act
of 1933, as amended (any and all of whom are referred to as "Indemnified
Parties") from and against any and all losses, claims, damages and liabilities,
joint or several (including all legal or other expenses reasonably incurred by
any Indemnified Party in connection with the preparation for or defense of any
claim, action or proceeding in any state or federal court or before any state or
federal administrative agency, whether or not resulting in any liability), to
which the Indemnified Party may become subject under any applicable federal or
state law, regulation or otherwise caused by or arising out of or in any way
relating to (i) the good faith performance by the Remarketing Agent of its
duties hereunder or under the Indenture (other than those arising out of the
negligence or willful misconduct of such Indemnified Party), or (ii) any untrue
or misleading statement or alleged untrue or misleading statement of a material
fact contained in the Placement Memorandum, or the omission or the alleged
omission to state in the Placement Memorandum a material fact required to be
stated in the Placement Memorandum or necessary to make the statements in the
Placement Memorandum, in light of the circumstances under which they were made,
not misleading, with the exception of statements or omissions related to the
Placement Agent or the Bank, including without limitation statements in the
Placement Memorandum in the sections entitled "Book Entry System," "THE LETTER
OF CREDIT AND THE REIMBURSEMENT AGREEMENT," "TAX TREATMENT," "PLACEMENT AGENT,"
and "REMARKETING AGENT." This indemnity agreement is in addition to any other
liability that the Company may otherwise have.
(b) Promptly after receipt by any Indemnified Party of any claim of the
commencement of any action or proceeding in respect of which indemnity may be
sought against the Company, such Indemnified Party will notify the Company in
writing of such claim or commencement of
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such action. Failure to so notify the Company shall not relieve the Company from
any liability that it may have under this Section 5. If such an action is
brought against an Indemnified Party and such Indemnified Party notifies the
Company of its commencement, the Company may, or if so requested by such
Indemnified Party will, participate in it or assume its defense with counsel
reasonably satisfactory to the Indemnified Party and after notice from the
Company to the Indemnified Party of an election to assume the defense, the
Company will not be liable to the Indemnified Party under this Section for any
legal or other costs incurred in connection with the defense other than
reasonable costs of investigation. If the Company does not employ counsel to
take charge of the defense or if an Indemnified Party reasonably concludes that
there may be defenses available to it different from or in addition to those
available to the Company (in which case the Company will not have the right to
assume the defense on behalf of the Indemnified Party), legal and other expenses
reasonably incurred by the Indemnified Party will be paid by the Company. Any
obligation under this Section of the Company to reimburse an Indemnified Party
for expenses includes the obligation to make advances to the Indemnified Party
to cover such expenses in reasonable amounts and at reasonable periodic
intervals not more often than monthly as requested by the Indemnified Party. The
Company will not be liable for any settlement effected without its prior written
consent which the Company agrees will not be unreasonably withheld.
(c) The Company also agrees to reimburse the Indemnified Parties for
all reasonable expenses incurred by any of them, including compensation for
witnesses' time and separate counsel fees, in connection with being compelled to
appear as a witness in any action brought against the Company or the Issuer or
any other party in connection with or in any way relating to the Bonds, whether
or not the Remarketing Agent is named a party.
Section 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina,
without giving effect to choice of law principles.
Section 7. Amendments.
(a) The terms of this Agreement as set forth herein shall not be
waived, altered, modified, amended or supplemented in any manner whatsoever
except by written instrument signed by all of the parties hereto.
(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 Remarketing Agent without the prior written consent of the Remarketing
Agent, and further agrees that it will notify the Remarketing Agent of any
amendments to any of the documents executed in connection with the Bonds.
Section 8. Termination. The Remarketing Agent may at any time resign
and be discharged of the duties and obligations created by this Agreement by
giving at least 30 days' notice to the Issuer, the Company, the Credit Facility
Issuer and the Trustee. The Remarketing Agent will resign at any time at the
request of the Company.
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Section 9. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Remarketing
Agreement to be duly executed as of the day and year first above written.
DOLLAR TREE DISTRIBUTION, INC.
By: /s/ H. Ray Compton
------------------------------
Name: H. Ray Compton
Title: Executive Vice President
[Execution by the Remarketing Agent follows on the next page.]
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FIRST UNION NATIONAL BANK,
as Remarketing Agent
By: /s/ Hal A. Teliment
-----------------------------
Name: Hal A. Telimen
Title: Senior Vice President
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