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EXHIBIT _____
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MASTER AGREEMENT
Dated as of September 2, 1997
among
DOLLAR GENERAL CORPORATION,
as a Lessee and Guarantor,
CERTAIN SUBSIDIARIES OF DOLLAR
GENERAL CORPORATION, as Lessees,
ATLANTIC FINANCIAL GROUP, LTD., as Lessor,
CERTAIN FINANCIAL INSTITUTIONS PARTIES HERETO,
as Lenders
and
SUNTRUST BANK, NASHVILLE, N.A., as Agent
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TABLE OF CONTENTS
Page
SECTION 1
DEFINITIONS; INTERPRETATION................................................................................ 1
SECTION 2
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION...................................................................................... 2
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease......................................... 2
(a) Land................................................................................ 2
(b) Building............................................................................ 2
SECTION 2.2 Fundings of Purchase Price, Development Costs and Construction Costs.................... 2
(a) Initial Funding and Payment of Purchase Price for Land and
Development Costs on Closing Date................................................... 2
(b) Subsequent Fundings and Payments of Construction Costs during
Construction Term................................................................... 3
(c) Aggregate Limits on Funded Amounts.................................................. 3
(d) Notice, Time and Place of Fundings.................................................. 3
(e) Lessees' Deemed Representation for Each Funding..................................... 4
(f) Not Joint Obligations............................................................... 4
(g) Non-Pro Rata Fundings............................................................... 4
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility Fee............................. 5
SECTION 2.4 Lessee Owner for Tax Purposes........................................................... 6
SECTION 2.5 Amounts Due Under Lease................................................................. 6
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS............................................................................ 7
SECTION 3.1 Conditions to the Obligations of the Funding Parties on each Closing Date............... 7
(a) Documents........................................................................... 7
(i) Deed and Purchase Agreement................................................... 7
(ii) Lease Supplement.............................................................. 7
(iii) Mortgage and Assignment of Lease and Rents.................................... 8
(iv) Security Agreement and Assignment............................................. 8
(v) Survey........................................................................ 8
(vi) Title and Title Insurance..................................................... 8
(vii) Appraisal.........................................................../......... 9
(viii)Environmental Audit and related Reliance Letter............................... 9
(ix) Evidence of Insurance......................................................... 9
(x) Officer's Certificate.........................................................10
(xi) UCC Financing Statement; Recording Fees; Transfer Taxes.......................10
(xii) Opinions......................................................................10
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(xiii) Officer's Certificate........................................................10
(xiv) Good Standing Certificates...................................................11
(b) Litigation..........................................................................11
(c) Legality............................................................................11
(d) No Events...........................................................................11
(e) Representations.....................................................................11
(f) Cutoff Date.........................................................................12
(g) Transaction Expenses................................................................12
SECTION 3.2 Additional Conditions for the Initial Closing Date......................................12
(i) Guaranty.....................................................................12
(ii) Loan Agreement...............................................................12
(iii) Master Agreement.............................................................12
(iv) Construction Agency Agreement................................................12
(v) Lease........................................................................12
(vi) Lessee's Resolutions and Incumbency Certificate, etc.........................12
(vii) Opinions of Counsel..........................................................13
(viii) Good Standing Certificate....................................................13
(ix) Lessor's Consents and Incumbency Certificate, etc............................13
SECTION 3.3 Conditions to the Obligations of Lessee.................................................13
(a) General Conditions..................................................................13
(b) Legality............................................................................13
(c) Purchase Agreement; Ground Lease....................................................14
SECTION 3.4 Conditions to the Obligations of the Funding Parties on each Funding Date...............14
(a) Funding Request.....................................................................14
(b) Condition Fulfilled.................................................................14
(c) Representations.....................................................................14
(d) No Bonded Stop Notice or Filed Mechanics Lien.......................................14
(e) Lease Supplement....................................................................14
SECTION 3.5 Completion Date Conditions..............................................................14
(a) Title Policy Endorsements; Architect's Certificate..................................15
(b) Construction Completion.............................................................15
(c) Construction Agent Certification....................................................15
SECTION 3.6 Addition of Lessees.....................................................................16
SECTION 4
REPRESENTATIONS............................................................................................17
SECTION 4.1 Representations of Lessee...............................................................17
(a) Organization; Corporate Powers......................................................17
(b) Authority...........................................................................17
(c) Binding Obligations.................................................................17
(d) No Conflict.........................................................................18
(e) Governmental Consents...............................................................18
(f) Governmental Regulation.............................................................18
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(g) Requirements of Law.................................................................18
(h) Rights in Respect of the Leased Property............................................18
(i) Hazardous Materials - Leased Properties.............................................18
(j) Leased Property.....................................................................19
(k) True and Complete Disclosure........................................................20
(l) Financial Statements................................................................20
(m) No Material Litigation..............................................................20
(n) Margin Regulations..................................................................21
(o) Subsidiaries........................................................................21
(p) Compliance With Environmental Laws..................................................21
(q) Insurance...........................................................................22
(r) No Default..............................................................................22
(s) No Burdensome Restrictions..........................................................22
(t) Taxes...............................................................................22
(u) Subsidiaries........................................................................22
(v) ERISA...............................................................................23
(w) Patents, Trademarks, Licenses, Etc..................................................24
(x) Ownership of Property; Liens........................................................24
(y) Indebtedness........................................................................24
(z) Financial Condition.................................................................24
(aa)Labor Matters.......................................................................25
(bb)Payment or Dividend Restrictions....................................................25
(cc)Financial Projections...............................................................25
(dd)Notice of Violations................................................................25
(ee)Filings.............................................................................26
SECTION 4.2 Representations of the Lessor...........................................................26
(a) Securities Act......................................................................26
(b) Due Organization, etc...............................................................26
(c) Due Authorization; Enforceability, etc..............................................26
(d) No Conflict.........................................................................26
(e) Litigation..........................................................................27
(f) Lessor Liens........................................................................27
(g) Employee Benefit Plans..............................................................27
(h) General Partner.....................................................................27
(i) Financial Information...............................................................27
(j) No Offering.........................................................................27
SECTION 4.3 Representations of each Lender..........................................................27
(a) Securities Act......................................................................27
(b) Employee Benefit Plans..............................................................28
SECTION 5
COVENANTS OF THE LESSEES AND THE LESSOR....................................................................28
SECTION 5.1 Affirmative Covenants.........................................................................28
(a) Corporate Existence, Etc............................................................28
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(b) Compliance with Laws, Etc.................................................................28
(c) Payment of Taxes and Claims, Etc..........................................................28
(d) Keeping of Books..........................................................................28
(e) Visitation, Inspection, Etc...............................................................29
(f) Insurance; Maintenance of Properties......................................................29
(g) Financial Reports.........................................................................30
(h) Notices Under Certain Other Indebtedness..................................................32
(i) Notice of Litigation......................................................................32
(j) Subsidiary Guaranties.....................................................................32
(k) Existing Business.........................................................................33
(l) ERISA information and Compliance..........................................................33
(m) Financial Requirements....................................................................33
(n) Liens.....................................................................................34
(o) Merger and Sale of Assets.................................................................35
(p) Transactions with Affiliates..............................................................36
(q) Nature of Business........................................................................36
(r) Regulations G, T, U and X.................................................................36
(s) ERISA Compliance..........................................................................36
(t) Investments, Loans, and Advances..........................................................36
(u) Sales and Leasebacks......................................................................37
(v) Guaranties................................................................................38
(w) Limitation on Funded Debt.................................................................38
(x) Acquisitions..............................................................................39
SECTION 5.2 Further Assurances............................................................................39
SECTION 5.3 Additional Required Appraisals................................................................39
SECTION 5.4 Lessor's Covenants............................................................................39
SECTION 6
TRANSFERS BY LESSOR AND LENDERS............................................................................41
SECTION 6.1 Lessor Transfers..............................................................................41
SECTION 6.2 Lender Transfers..............................................................................41
SECTION 7
INDEMNIFICATION............................................................................................43
SECTION 7.1 General Indemnification.......................................................................43
SECTION 7.2 Environmental Indemnity.......................................................................45
SECTION 7.3 Proceedings in Respect of Claims..............................................................46
SECTION 7.4 General Tax Indemnity.........................................................................48
(a) Tax Indemnity.............................................................................48
(b) Exclusions from General Tax Indemnity.....................................................49
(c) Contests..................................................................................50
(d) Reimbursement for Tax Savings.............................................................52
(e) Payments..................................................................................52
(f) Reports...................................................................................53
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(g) Verification........................................................................53
SECTION 7.5 Increased Costs, etc....................................................................53
(a) Taxes...............................................................................53
(b) Interest Rate Not Ascertainable, etc................................................56
(c) Illegality..........................................................................56
(d) Increased Costs.....................................................................57
(e) Lending Offices.....................................................................58
(f) Funding Losses......................................................................59
(g) Assumptions Concerning Funding of LIBOR Advances....................................59
(h) Capital Adequacy....................................................................60
(i) Limitation on Certain Payment Obligations...........................................60
SECTION 7.6 End of Term Indemnity...................................................................61
SECTION 8
MISCELLANEOUS..............................................................................................62
SECTION 8.1 Survival of Agreements..................................................................62
SECTION 8.2 Notices.................................................................................62
SECTION 8.3 Counterparts............................................................................62
SECTION 8.4 Amendments..............................................................................62
SECTION 8.5 Headings, etc...........................................................................63
SECTION 8.6 Parties in Interest.....................................................................63
SECTION 8.7 GOVERNING LAW...........................................................................63
SECTION 8.8 Expenses................................................................................64
SECTION 8.9 Severability............................................................................64
SECTION 8.10 Liabilities of the Funding Parties......................................................64
SECTION 8.11 Submission to Jurisdiction; Waivers.....................................................64
SECTION 8.12 Liabilities of the Agent................................................................65
APPENDIX A Definitions and Interpretation
SCHEDULES
SCHEDULE 2.2 Commitments
SCHEDULE 8.2 Notice Information
EXHIBITS
EXHIBIT A Form of Funding Request
EXHIBIT B Form of Assignment of Lease and Rents
EXHIBIT C Form of Security Agreement and Assignment
EXHIBIT D Form of Mortgage
EXHIBIT E Form of Joinder Agreement
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EXHIBIT F Form of Environmental Audit Reliance Letter
EXHIBIT G Forms of Opinions of Counsel
EXHIBIT H Form of Certification of Construction Completion
EXHIBIT I Form of Payment Date Notice
EXHIBIT J Form of Assignment and Acceptance Agreement
EXHIBIT K Form of Compliance Request
EXHIBIT L Form of Subsidiary Guaranty
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MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of September 2, 1997 (as it may be
amended or modified from time to time in accordance with the provisions hereof,
this "Master Agreement"), is among DOLLAR GENERAL CORPORATION, a Kentucky
corporation ("Dollar"), certain Subsidiaries of Dollar that may hereafter become
parties hereto pursuant to Section 3.6 (together with Dollar in its capacity as
a lessee, individually a "Lessee" and collectively, the "Lessees"), ATLANTIC
FINANCIAL GROUP, LTD., a Texas limited partnership (the "Lessor"), certain
financial institutions parties hereto as lenders (together with any other
financial institution that becomes a party hereto as a lender, collectively
referred to as "Lenders" and individually as a "Lender"), and SUNTRUST BANK,
NASHVILLE, N.A., a national banking association, as agent for the Lenders (in
such capacity, the "Agent").
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Master Agreement,
the Lease, the Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates acquiring Land identified by Dollar from time to time, and leasing
such Land to a Lessee, (ii) Dollar, as Construction Agent for the Lessor, wishes
to construct Buildings on such Land for the Lessor and, when completed, to lease
such Buildings, or to cause such Buildings to be leased, from the Lessor as part
of the Leased Properties under a Lease, (iii) Dollar, as agent, wishes to
obtain, and the Lessor is willing to provide, funding for the acquisition of the
Land and the construction of Buildings, (iv) the Lessor wishes to obtain, and
Lenders are willing to provide, from time to time, financing of a portion of the
funding of the acquisition of the Land and the construction of the Buildings,
and (v) Dollar is willing to provide its Guaranty Agreement to the Lenders and
the Lessor.
In consideration of the mutual agreements contained in this Master
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
for all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Master Agreement.
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SECTION 2
ACQUISITION, CONSTRUCTION AND LEASE; FUNDINGS;
NATURE OF TRANSACTION
SECTION 2.1 Agreement to Acquire, Construct, Fund and Lease.
(a) Land. Subject to the terms and conditions of this Master
Agreement, with respect to each parcel of Land identified by Dollar that is not
an IDB Property acquired by an Authority pursuant to the following sentence, on
the related Closing Date (i) the Lessor agrees to acquire such interest in the
related Land from the applicable Seller as is transferred, sold, assigned and
conveyed to the Lessor pursuant to the applicable Purchase Agreement or to lease
such interest in the related Land from the applicable Ground Lessor as is leased
to the Lessor pursuant to the applicable Ground Lease, (ii) the Lessor hereby
agrees to lease, or sublease, as the case may be, such Land to a Lessee pursuant
to a Lease, and (iii) the related Lessee hereby agrees to lease, or sublease, as
the case may be, such Land from the Lessor pursuant to the related Lease. With
respect to each IDB Property, (i) the applicable Authority may acquire such
interest in the related Land from the applicable Seller as is transferred, sold,
assigned and conveyed to the Authority pursuant to the applicable Purchase
Agreement, (ii) the applicable Authority will lease such Land to the Lessor
pursuant to the related IDB Lease, and (iii) the related Lessee hereby agrees to
sublease such Land from the Lessor pursuant to the related IDB Lease (it being
understood that any reference in the Operative Documents to the lease by a
Lessee of an IDB Property acquired by an Authority shall be deemed to refer to
the sublease thereof pursuant to the related Lease).
(b) Building. With respect to each parcel of Land, subject to
the terms and conditions of this Master Agreement, from and after the Closing
Date relating to such Land (i) the Construction Agent agrees, pursuant to the
terms of the Construction Agency Agreement, to construct and install the
Building on such Land for the Lessor prior to the Scheduled Construction
Termination Date, (ii) the Lenders and the Lessor agree to fund the costs of
such construction and installation (and interest and yield thereon), (iii) the
Lessor shall lease, or sublease, as the case may be, such Building as part of
such Leased Property to the related Lessee pursuant to the related Lease, and
(iv) the related Lessee shall lease, or sublease, as the case may be, such
Building from the Lessor pursuant to the related Lease.
SECTION 2.2 Fundings of Purchase Price, Development Costs and
Construction Costs.
(a) Initial Funding and Payment of Purchase Price for Land and
Development Costs on Closing Date. Subject to the terms and conditions of this
Master Agreement, on the Closing Date for any Land, each Lender shall make
available to the Lessor its initial Loan with respect to such Land in an amount
equal to the product of such Lender's Commitment Percentage times the purchase
price for the Land, if applicable, and the development, transaction and closing
costs incurred by the Lessee through such Closing Date, which funds the Lessor
shall use, together with the Lessor's own funds in an amount equal to the
product of the Lessor's
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Commitment Percentage times the purchase price, if applicable, for the related
Land and the development, transaction and closing costs incurred by the
Construction Agent, as agent, through such Closing Date, to purchase the Land
from the applicable Seller pursuant to the applicable Purchase Agreement or
lease the Land from the applicable Ground Lessor pursuant to the applicable
Ground Lease and to pay to the Construction Agent the amount of such
development, transaction and closing costs, and the Lessor shall lease, or
sublease, as the case may be, such Land to the related Lessee pursuant to the
Lease.
(b) Subsequent Fundings and Payments of Construction Costs
during Construction Term. Subject to the terms and conditions of this Master
Agreement, on each Funding Date following the Closing Date for each parcel of
Land until the related Construction Term Expiration Date, (i) each Lender shall
make available to the Lessor a Loan in an amount equal to the product of such
Lender's Commitment Percentage times the amount of Funding requested by the
Construction Agent for such Funding Date, which funds the Lessor hereby directs
the Lender to pay over to the Construction Agent as set forth in paragraph (d),
and (ii) the Lessor shall pay over to the Construction Agent its own funds
(which shall constitute a part of and an increase in the Lessor's Invested
Amount with respect to such Leased Property) in an amount equal to the product
of the Lessor's Commitment Percentage times the amount of Funding requested by
the Construction Agent for such Funding Date.
(c) Aggregate Limits on Funded Amounts. The aggregate amount
that the Funding Parties shall be committed to provide as Funded Amounts under
this Master Agreement and the Loan Agreement shall not exceed (x) with respect
to each Leased Property the costs of purchase and construction of such Leased
Property and the related closing and financing costs, or (y) $100,000,000 in the
aggregate for all Leased Properties; provided, however, that in the event that
any Lessee exercises a Partial Purchase Option, the amount set forth in this
clause (y) shall be reinstated to the extent of the Funded Amounts paid by such
Lessee in connection with such Partial Purchase Option. The aggregate amount
that any Funding Party shall be committed to fund under this Master Agreement
and the Loan Agreement shall not exceed the lesser of (i) such Funding Party's
Commitment and (ii) such Funding Party's Commitment Percentage of the aggregate
Fundings requested under this Master Agreement.
(d) Notice, Time and Place of Fundings. With respect to each
Funding, the Construction Agent shall give the Lessor and the Agent an
irrevocable prior written notice not later than 11:00 a.m., Nashville, Tennessee
time, three Business Days prior to the proposed Closing Date or other Funding
Date, as the case may be, pursuant, in each case, to a Funding Request in the
form of Exhibit A (a "Funding Request"), specifying the Closing Date or
subsequent Funding Date, as the case may be, the amount of Funding requested,
whether such Funding shall be a LIBOR Advance, a Base Rate Advance or a
combination thereof and the Rent Period(s) therefor. All documents and
instruments required to be delivered on such Closing Date pursuant to this
Master Agreement shall be delivered at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as may
be determined by the Lessor, the Construction Agent and the Agent. Each Funding
shall occur on a Business Day and shall be in an amount equal to $3,000,000 or
an integral multiple of $100,000 in excess
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thereof. All remittances made by any Lender and the Lessor for any Funding shall
be made in immediately available funds by wire transfer to or, as is directed
by, the Construction Agent, with receipt by the Construction Agent not later
than 12:00 noon, Nashville, Tennessee time, on the applicable Funding Date, upon
satisfaction or waiver of the conditions precedent to such Funding set forth in
Section 3; such funds shall (1) in the case of the initial Funding on a Closing
Date, be used to pay the purchase price to the applicable Seller for the related
Land and pay the Construction Agent development, transaction and closing costs
related to such Land, and (2) in the case of each subsequent Funding be paid to
the Construction Agent, for the payment or reimbursement of Construction costs.
(e) Lessees' Deemed Representation for Each Funding. Each
Funding Request by the Construction Agent shall be deemed a reaffirmation of
each Lessee's indemnity obligations in favor of the Indemnitees under the
Operative Documents and a representation by Dollar to the Lessor, the Agent, and
the Lenders that on the proposed Closing Date or Funding Date, as the case may
be, (i) the amount of Funding requested represents amounts owing in respect of
the purchase price of the related Land and development, transaction and closing
costs in respect of the Leased Property (in the case of the initial Funding on a
Closing Date) or amounts that the Construction Agent reasonably believes will be
due in the 90 days following such Funding from the Construction Agent to third
parties in respect of the Construction, or amounts paid by the Construction
Agent to third parties in respect of the Construction for which the Construction
Agent has not previously been reimbursed by a Funding (in the case of any
Funding), (ii) no Event of Default or Potential Event of Default exists, and
(iii) the representations of the Lessees set forth in Section 4.1 are true and
correct in all Material respects as though made on and as of such Funding Date,
except to the extent such representations or warranties relate solely to an
earlier date, in which case such representations and warranties shall have been
true and correct in all Material respects on and as of such earlier date.
(f) Not Joint Obligations. Notwithstanding anything to the
contrary set forth herein or in the other Operative Documents, each Lender's and
the Lessor's commitments shall be several, and not joint. In no event shall any
Funding Party be obligated to fund an amount in excess of such Funding Party's
Commitment Percentage of any Funding, or to fund amounts in the aggregate in
excess of such Funding Party's Commitment.
(g) Non-Pro Rata Fundings. Notwithstanding anything to the
contrary set forth in this Master Agreement, at the Agent's option, Fundings may
be made by drawing on the Lessor's Commitment until such Commitment is fully
funded before drawing on the Lenders' Commitments. In such event, when the
Lessor's Commitment is fully funded, the Lenders will fund, on a pro rata basis
as among themselves, 100% of the amount of the Fundings thereafter. In no event
shall any Funding Party have any obligation to fund any amount hereunder in
excess of the amount of such Funding Party's Commitment.
(h) Pre-Funded Amount. The Construction Agent may request, by
delivery of an irrevocable prior written notice to the Lessor and the Agent not
later than 11:00 a.m. Nashville, Tennessee time, three Business Days prior to
the proposed funding date, that the Funding Parties
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prefund amounts to the Construction Agent for anticipated acquisitions (the
"Pre-Funded Amount"), provided that at no time shall the Pre-Funded Amount
exceed $5,000,000. The Pre-Funded Amount may be comprised of LIBOR Advances,
Base Rate Advances or a combination thereof, as set forth on the related Funding
Request. The Pre-Funded Amount shall accrue interest or Yield, as the case may
be, commencing on the date such amount is funded to the Construction Agent. The
Funding Parties shall not be obligated to make such Funding if (i) any Event of
Default or Potential Event of Default has occurred and in continuing or (ii) the
representations of the Lessees set forth in Section 4.1 are not true and correct
in all Material respects as of the date of deposit, except to the extent such
representations and warranties related solely to an earlier date, in which case
such representations and warranties shall have been true in all Material
respects as of such earlier date. The Construction Agent may disburse the
Pre-Funded Amount, which date of disbursement shall be a Closing Date or a
Funding Date, as applicable, provided that all of the conditions precedent set
forth herein with respect to such Closing Date or Funding Date, as the case may
be, have been satisfied. If any portion of the Pre-Funded Amount has not been
disbursed on the date that is 120 days from the date of the funding thereof by
the Funding Parties to the Construction Agent, such funds, together with accrued
interest and Yield thereon, shall be returned to the Funding Parties.
SECTION 2.3 Funded Amounts and Interest and Yield Thereon; Facility
Fee.
(a) The Lessor's Invested Amount for any Leased Property
outstanding from time to time shall accrue yield ("Yield") at the Lessor Rate,
computed using the actual number of days elapsed and a 360 day year. If all or a
portion of the principal amount of or yield on the Lessor's Invested Amounts
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall, without limiting the rights of the Lessor
under any Lease, to the maximum extent permitted by law, accrue yield at the
Overdue Rate, from the date of nonpayment until paid in full (both before and
after judgment).
(b) Each Lender's Funded Amount for any Leased Property
outstanding from time to time shall accrue interest as provided in the Loan
Agreement.
(c) During the Construction Term, in lieu of the payment of
accrued interest, on each Payment Date, each Lender's Funded Amount in respect
of a Construction Land Interest shall automatically be increased by the amount
of interest accrued and unpaid on the related Loans pursuant to the Loan
Agreement during the Rent Period ending immediately prior to such Payment Date
(except to the extent that at any time such increase would cause such Lender's
Funded Amount to exceed such Lender's Commitment, in which event the related
Lessee shall pay such excess amount to such Lender in immediately available
funds on such Payment Date). Similarly, in lieu of the payment of accrued Yield,
on each Payment Date, the Lessor's Invested Amount in respect of such
Construction Land Interest shall automatically be increased by the amount of
Yield accrued on the Lessor's Invested Amount in respect of such Land during the
Rent Period ending immediately prior to such Payment Date (except to the extent
that at any time such increase would cause the Lessor's Invested Amount to
exceed the Lessor's Commitment, in which event the related Lessee shall pay such
excess amount to the Lessor in
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immediately available funds on such Payment Date). Such increases in Funded
Amounts shall occur without any disbursement of funds by the Funding Parties.
(d) Three Business Days prior to the last day of each Rent
Period, Dollar shall deliver to the Lessor and the Agent a notice substantially
in the form of Exhibit I (each, a "Payment Date Notice"), appropriately
completed, specifying the allocation of the Funded Amounts related to such Rent
Period to LIBOR Advances and Base Rate Advances and the Rent Periods therefor,
provided that no such allocation shall be in an amount less than $1,000,000.
Each such Payment Date Notice shall be irrevocable. If no such notice is given,
the Funded Amounts shall be allocated to a LIBOR Advance with a Rent Period of
three (3) months.
(e) Dollar hereby agrees to pay to each Funding Party a
facility fee for each day from the date hereof until the Funding Termination
Date equal to (i) the applicable Facility Fee Percentage per annum times (ii)
the amount of such Funding Party's Commitment, whether used or unused, times
(iii) 1/360. Such facility fee shall be payable in arrears on each Quarterly
Payment Date.
SECTION 2.4 Lessee Owner for Tax Purposes. With respect to each Leased
Property, it is the intent of the related Lessee and the Funding Parties that
the related Lease shall constitute and be interpreted as a true leasing
transaction, except that for federal, state and local tax purposes the related
Lease shall be treated as the repayment and security provisions of a loan by the
Lessor to such Lessee, and that such lessee shall be treated as the legal and
beneficial owner entitled to any and all benefits of ownership of such Leased
Property and all payments of Basic Rent during the Lease Term shall be treated
as payments of interest and principal. Each of the related Lessee and each
Funding Party agrees to file tax returns consistent with such intent.
Nevertheless, each Lessee acknowledges and agrees that no Funding Party or any
other Person has made any representations or warranties concerning the tax,
financial, accounting or legal characteristics or treatment of the Operative
Documents and that each Lessee has obtained and relied solely upon the advice of
its own tax, accounting and legal advisors concerning the Operative Documents
and the accounting, tax, financial and legal consequences of the transactions
contemplated therein.
SECTION 2.5 Amounts Due Under Lease. With respect to each Leased
Property, anything else herein or elsewhere to the contrary notwithstanding, it
is the intention of the Lessees and the Funding Parties that: (i) the amount and
timing of Basic Rent due and payable from time to time from the Lessee under the
related Lease shall be equal to the aggregate payments due and payable with
respect to interest on, and principal of, the Loans in respect of such Leased
Property and Yield on, and principal of, the Lessor's Invested Amounts, if any,
in respect of such Leased Property on each Payment Date; (ii) if the related
Lessee elects the Purchase Option or the Partial Purchase Option with respect to
a Leased Property or becomes obligated to purchase such Leased Property under
the related Lease, the Funded Amounts in respect of such Leased Property, all
interest and Yield thereon and all other obligations of such Lessee owing to the
Funding Parties in respect of the Leased Property shall be paid in full by such
Lessee, (iii) if the related Lessee properly elects the Remarketing Option or
the Surrender
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Option, the principal amount of, and accrued interest on, the A Loans in respect
of such Leased Property, will be paid out of the Recourse Deficiency Amount, and
such Lessee shall only be required to pay to the Lenders in respect of the
principal amount of the B Loans in respect of such Leased Property and to the
Lessor in respect of the Lessor's Invested Amounts in respect of such Leased
Property, the proceeds of the sale of such Leased Property; and (iv) upon an
Event of Default resulting in an acceleration of the related Lessee's obligation
to purchase such Leased Property under the related Lease, the amounts then due
and payable by such Lessee under such Lease shall include all amounts necessary
to pay in full the Loans in respect of such Leased Property, and accrued
interest thereon, the Lessor's Invested Amounts in respect of such Leased
Property and accrued Yield thereon and all other obligations of such Lessee
owing to the Funding Parties in respect of such Leased Property.
SECTION 3
CONDITIONS PRECEDENT; DOCUMENTS
SECTION 3.1 Conditions to the Obligations of the Funding Parties on
each Closing Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on the Closing Date with respect to any Leased Property shall be
subject to the fulfillment to the satisfaction of, or waiver by, each such party
hereto (acting directly or through its counsel) on or prior to such Closing Date
of the following conditions precedent, provided that the obligations of any
Funding Party shall not be subject to any conditions contained in this Section
3.1 which are required to be performed by such Funding Party:
(a) Documents. The following documents shall have been
executed and delivered by the respective parties thereto:
(i) Deed and Purchase Agreement. The related original
Deed duly executed by the applicable Seller and in recordable
form, and copies of the related Purchase Agreement, duly
executed by such Seller and the Lessor, shall each have been
delivered to the Agent by Dollar, with copies thereof to each
other Funding Party or the related Ground Lease duly executed
by the Lessor and the related Ground Lessor shall have been
delivered to the Agent, with copies thereof to each other
Funding Party, as applicable (it being understood, that each
Purchase Agreement and each Ground Lease shall be satisfactory
in form and substance to the Lessor and the Lenders). If such
Leased Property is an IDB Property, the IBD Documentation
therefor shall be satisfactory in form and substance to the
Lessor and the Lenders.
(ii) Lease Supplement. The original of the related
Lease Supplement, duly executed by the related Lessee and the
Lessor and in recordable form, shall have been delivered to
the Agent by the related Lessee.
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(iii) Mortgage and Assignment of Lease and Rents.
Counterparts of the Mortgage (substantially in the form of
Exhibit D attached hereto), duly executed by the Lessor and in
recordable form, shall have been delivered to the Agent (which
Mortgage shall secure all of the debt to the Agent unless such
mortgage is subject to a tax based on the amount of
indebtedness secured thereby, in which case the amount secured
will be limited to debt in an amount equal to 125% of the
projected cost of acquisition and construction of such Leased
Property); and the Assignment of Lease and Rents
(substantially in the form of Exhibit B attached hereto) in
recordable form, duly executed by the Lessor, shall have been
delivered to the Agent by the Lessor.
(iv) Security Agreement and Assignment. If such
Leased Property is a Major Property, counterparts of the
Security Agreement and Assignment (substantially in the form
of Exhibit C attached hereto), duly executed by the
Construction Agent, with an acknowledgment and consent thereto
satisfactory to the Lessor and the Agent duly executed by the
related General Contractor and the related Architect, as
applicable, and complete copies of the related Construction
Contract and the related Architect's Agreement certified by
the Construction Agent, shall have been delivered to the
Lessor and the Agent (it being understood and agreed that if
no related Construction Contract or Architect's Agreement
exists on such Closing Date, such delivery shall not be a
condition precedent to the Funding on such Closing Date, and
in lieu thereof the Construction Agent shall deliver complete
copies of such Security Agreement and Assignment and consents
concurrently with the Construction Agent's entering into such
contracts).
(v) Survey. If such Leased Property is a Major
Property, the related Lessee shall have delivered, or shall
have caused to be delivered, to the Lessor and the Agent, at
such Lessee's expense, an accurate survey certified to the
Lessor and the Agent in a form reasonably satisfactory to the
Lessor and the Agent and showing no state of facts
unsatisfactory to the Lessor or the Agent and prepared within
ninety (90) days of the Closing Date by a Person reasonably
satisfactory to the Lessor and the Agent. Such survey shall
(1) be acceptable to the Title Insurance Company for the
purpose of providing extended coverage to the Lessor and a
lender's comprehensive endorsement to the Agent, (2) show no
encroachments on such Land by structures owned by others, and
no encroachments from any part of such Leased Property onto
any land owned by others, and (3) disclose no state of facts
reasonably objectionable to the Lessor, the Agent or the Title
Insurance Company, and be reasonably acceptable to each such
Person.
(vi) Title and Title Insurance. On such Closing Date,
the Lessor shall receive from a title insurance company
acceptable to the Lessor and the Agent an ALTA Owner's Policy
of Title Insurance issued by such title insurance company and
the Agent shall receive from such title insurance company an
ALTA
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Mortgagee's Policy of Title Insurance issued by such title
insurance company, in each case, in the amount of the
projected cost of acquisition and construction of such Leased
Property, reasonably acceptable in form and substance to the
Lessor and the Agent, respectively (collectively, the "Title
Policy"). The Title Policy shall be dated as of the Closing
Date, and, to the extent permitted under Applicable Law, shall
include such affirmative endorsements as the Lessor or the
Agent shall reasonably request.
(vii) Appraisal. If such Leased Property is a Major
Property or if requested by the Agent (provided that the Agent
shall not be entitled to so request an Appraisal with respect
to more than five Minor Properties) each Funding Party shall
have received a report of the Appraiser (an "Appraisal"), paid
for by the related Lessee, which shall meet the requirements
of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, shall be satisfactory to such Funding Party and
shall state in a manner satisfactory to such Funding Party the
estimated "as vacant" value of such Land and the Building to
be constructed thereon. Such Appraisal must show that the "as
vacant" value of the Leased Property (determined as if the
Building had already been completed in accordance with the
related Plans and Specifications and by excluding from such
value the amount of assessments on such Leased Property) is at
least 45% of the total cost of the Leased Property, including
the trade fixtures, equipment and personal property utilized
in connection with the Leased Property and to be funded by the
Funding Parties. Upon request by the related Lessee, the
Funding Parties agree to waive delivery on such Closing Date
of an Appraisal, provided that no subsequent Funding with
respect to such Leased Property shall occur until such
Appraisal has been delivered.
(viii) Environmental Audit and related Reliance
Letter. The Lessor and the Agent shall have received an
Environmental Audit for such Leased Property, which shall be
conducted in accordance with ASTM standards and shall not
include a recommendation for further investigation and is
otherwise satisfactory to the Lessor and the Agent; and the
firm that prepared the Environmental Audit for such Leased
Property shall have delivered to the Lessor and the Agent a
letter (substantially in the form of Exhibit F attached
hereto) stating that the Lessor, the Agent and the Lenders may
rely upon such firm's Environmental Audit of such Land, it
being understood that the Lessor's and the Agent's acceptance
of any such Environmental Audit shall not release or impair
any Lessee's obligations under the Operative Documents with
respect to any environmental liabilities relating to such
Leased Property.
(ix) Evidence of Insurance. If such Leased Property
is a Major Property, the Lessor and the Agent shall have
received from the related Lessee certificates of insurance
evidencing compliance with the provisions of Article VIII of
the related Lease (including the naming of the Lessor, the
Agent and the Lenders as
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additional insured or loss payee with respect to such
insurance as their interests may appear), in form and
substance reasonably satisfactory to the Lessor and the Agent.
(x) Officer's Certificate. Each of the Agent and
the Lessor shall have received an Officer's Certificate of the
related Lessee and the Guarantor stating that, to the best of
such officer's knowledge, (A) each and every representation
and warranty of such Lessee and of the Guarantor contained in
the Operative Documents is true and correct in all Material
respects on and as of such Closing Date as though made on and
as of such Closing Date, except to the extent such
representations or warranties relate solely to an earlier
date, in which case such representations and warranties were
true and correct in all Material respects on and as of such
earlier date; (B) no Event of Default, Potential Event of
Default or Construction Force Majeure Event has occurred and
is continuing; (C) each Operative Document to which such
Lessee or the Guarantor is a party is in full force and effect
with respect to it; and (D) no event that could reasonably be
expected to have a Materially Adverse Effect has occurred
since January 31, 1997.
(xi) UCC Financing Statement; Recording Fees;
Transfer Taxes. Each Funding Party shall have received
satisfactory evidence of (i) the execution and delivery to
Agent of a UCC-1 and, if required by applicable law, UCC-2
financing statement to be filed with the Secretary of State of
the applicable State (or other appropriate filing office) and
the county where the related Land is located, respectively,
and such other Uniform Commercial Code financing statements as
any Funding Party deems necessary or desirable in order to
perfect such Funding Party's interests and (ii) the payment of
all recording and filing fees and taxes with respect to any
recordings or filings made of the related Deed, the related
Lease, the related Lease Supplement, the related Mortgage and
the related Assignment of Lease and Rents.
(xii) Opinions. If such Leased Property is a Major
Property or if such Leased Property is the first Leased
Property to be located in a particular state, the opinion of
local counsel for the related Lessee qualified in the
jurisdiction in which such Leased Property is located,
substantially in the form set forth in Exhibit G-2 attached
hereto, and containing such other matters as the parties to
whom they are addressed shall reasonably request, shall have
been delivered and addressed to each of the Lessor, the Agent
and the Lenders. To the extent requested by the Agent,
opinions supplemental to those delivered under Section
3.2(vii) and reasonably satisfactory to the Agent shall have
been delivered and addressed to each of the Lessor, the Agent
and the Lenders.
(xiii) Officer's Certificate. The Agent shall have
received an Officer's Certificate of the Lessor stating that,
to the best of such officer's knowledge,
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(A) each and every representation and warranty of the Lessor
contained in the Operative Documents is true and correct in
all Material respects on and as of the Closing Date as though
made on and as of the Closing Date, except to the extent such
representations or warranties relate solely to an earlier
date, in which case such representations and warranties shall
have been true and correct in all Material respects on and as
of such earlier date; (B) no Event of Default or Potential
Event of Default has occurred and is continuing; (C) each
Operative Document to which the Lessor is a party is in full
force and effect with respect to it; and (D) no event that
could have a Materially Adverse Effect has occurred since the
date of the most recent financial statements of the Lessor
delivered or required to be delivered to the Agent.
(xiv) Good Standing Certificates. If such Leased
Property is a Major Property or if such Leased Property is the
first Leased Property to be located in a particular state by
the related Lessee, the Agent shall have received good
standing certificates for the Lessor and the related Lessee
from the appropriate offices of the state where the related
Land is located.
(b) Litigation. No action or proceeding shall have been
instituted or, to the knowledge of any Funding Party, threatened nor shall any
governmental action, suit, proceeding or investigation be instituted or
threatened before any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any Governmental Authority,
to set aside, restrain, enjoin or prevent the performance of this Master
Agreement or any transaction contemplated hereby or by any other Operative
Document or which is reasonably likely to Materially adversely affect the Leased
Property or any transaction contemplated by the Operative Documents or which
could reasonably be expected to result in a Materially Adverse Effect.
(c) Legality. In the opinion of such Funding Party or its
counsel, the transactions contemplated by the Operative Documents shall not
violate any Applicable Law, and no change shall have occurred or been proposed
in Applicable Law that would make it illegal for such Funding Party to
participate in any of the transactions contemplated by the Operative Documents.
(d) No Events. (i) No Event of Default, Potential Event of
Default, Event of Loss or Event of Taking relating to such Leased Property shall
have occurred and be continuing, (ii) no action shall be pending or threatened
by a Governmental Authority to initiate a Condemnation or an Event of Taking,
and (iii) there shall not have occurred any event that could reasonably be
expected to have a Materially Adverse Effect since January 31, 1997.
(e) Representations. Each representation and warranty of the
parties hereto or to any other Operative Document contained herein or in any
other Operative Document shall be true and correct in all Material respects as
though made on and as of the Closing Date, except to the extent such
representations or warranties relate solely to an earlier date, in which case
such
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representations and warranties shall have been true and correct in all Material
respects on and as of such earlier date.
(f) Cutoff Date. No Closing Date shall occur after the Funding
Termination Date.
(g) Transaction Expenses. The related Lessee shall have paid
the Transaction Costs then accrued and invoiced which such Lessee has agreed to
pay pursuant to Section 8.8.
SECTION 3.2 Additional Conditions for the Initial Closing Date. The
obligations of the Lessor and each Lender to carry out their respective
obligations under Section 2 of this Master Agreement to be performed on the
initial Closing Date shall be subject to the satisfaction of, or waiver by, each
such party hereto (acting directly or through its counsel) on or prior to the
initial Closing Date of the following conditions precedent in addition to those
set forth in Section 3.1, provided that the obligations of any Funding Party
shall not be subject to any conditions contained in this Section 3.2 which are
required to be performed by such Funding Party:
(i) Guaranty. Counterparts of the Guaranty
Agreement, duly executed by Dollar, shall have been delivered
to each Funding Party.
(ii) Loan Agreement. Counterparts of the Loan
Agreement, duly executed by the Lessor, the Agent and each
Lender shall have been delivered to each of the Lessor and the
Agent. An A Note and a B Note, duly executed by the Lessor,
shall have been delivered to each Lender.
(iii) Master Agreement. Counterparts of this Master
Agreement, duly executed by the parties hereto, shall have
been delivered to each of the parties hereto.
(iv) Construction Agency Agreement. Counterparts of
the Construction Agency Agreement, duly executed by the
parties thereto shall have been delivered to each of the
parties hereto.
(v) Lease. Counterparts of each Lease, duly
executed by each Lessee party hereto on the Initial Closing
Date, respectively, and the Lessor, shall have been delivered
to each Funding Party and the original, chattel paper copy of
each such Lease shall have been delivered to the Agent.
(vi) Lessee's Resolutions and Incumbency
Certificate, etc. Each of the Agent and the Lessor shall have
received (x) a certificate of the Secretary or an Assistant
Secretary of each Lessee party hereto on the Initial Closing
Date, attaching and certifying as to (i) the Board of
Directors' (or appropriate committee's) resolution duly
authorizing the execution, delivery and performance by it of
each Operative Document to which it is or will be a party,
(ii) the
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incumbency and signatures of persons authorized to execute and
deliver such documents on its behalf, (iii) its articles or
certificate of incorporation, certified as of a recent date by
the Secretary of State of the state of its incorporation and
(iv) its by-laws, and (y) good standing certificates for such
Lessee from the appropriate offices of the States of such
Person's incorporation and principal place of business.
(vii) Opinions of Counsel. The opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇, dated the initial Closing Date, substantially in the
form set forth in Exhibit G-1 attached hereto, and containing
such other matters as the parties to whom it is addressed
shall reasonably request, shall have been delivered and
addressed to each of the Lessor, the Agent and the Lenders.
The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC, dated the initial Closing
Date, substantially in the form set forth in Exhibit G-3
attached hereto, and containing such other matters as the
parties to whom it is addressed shall reasonably request,
shall have been delivered to each of the Agent and the
Lenders.
(viii) Good Standing Certificate. The Agent shall
have received a good standing certificate for the Lessor from
the appropriate offices of the State of Texas.
(ix) Lessor's Consents and Incumbency Certificate,
etc. The Agent shall have received a certificate of the
Secretary or an Assistant Secretary of the General Partner of
the Lessor attaching and certifying as to (i) the consents of
the partners of the Lessor duly authorizing the execution,
delivery and performance by it of each Operative Document to
which it is or will be a party, (ii) the incumbency and
signatures of persons authorized to execute and deliver such
documents on its behalf, and (iii) the Partnership Agreement.
SECTION 3.3 Conditions to the Obligations of Lessee. The obligations of
any Lessee to lease a Leased Property from the Lessor are subject to the
fulfillment on the related Closing Date to the satisfaction of, or waiver by,
such Lessee, of the following conditions precedent:
(a) General Conditions. The conditions set forth in Sections
3.1 and 3.2 that require fulfillment by the Lessor or the Lenders shall have
been satisfied, including the delivery of good standing certificates by the
Lessor pursuant to Sections 3.1(a)(xiv) and 3.2(b)(viii) and the delivery of an
opinion of counsel for the Lessor pursuant to Section 3.2(b)(vii).
(b) Legality. In the opinion of such Lessee or its counsel,
the transactions contemplated by the Operative Documents shall not violate any
Applicable Law, and no change shall have occurred or been proposed in Applicable
Law that would make it illegal for such Lessee to participate in any of the
transactions contemplated by the Operative Documents.
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(c) Purchase Agreement; Ground Lease. The Purchase Agreement
and, if applicable, the Ground Lease shall be reasonably satisfactory to such
Lessee.
SECTION 3.4 Conditions to the Obligations of the Funding Parties on
each Funding Date. The obligations of the Lessor and each Lender to carry out
their respective obligations under Section 2 of this Master Agreement to be
performed on each Funding Date shall be subject to the fulfillment to the
satisfaction of, or waiver by, each such party hereto (acting directly or
through their respective counsel) on or prior to each such Funding Date of the
following conditions precedent, provided that the obligations of any Funding
Party shall not be subject to any conditions contained in this Section 3.4 which
are required to be performed by such Funding Party:
(a) Funding Request. The Lessor and the Agent shall have
received from the Construction Agent the Funding Request therefor pursuant to
Section 2.2(d).
(b) Condition Fulfilled. As of such Funding Date, the
condition set forth in Section 3.1(d)(i) shall have been satisfied.
(c) Representations. As of such Funding Date, both before and
after giving effect to the Funding requested by the Construction Agent on such
date, the representations and warranties that the Lessees are deemed to make
pursuant to Section 2.2(e) shall be true and correct in all Material respects on
and as of such Funding Date as though made on and as of such Funding Date,
except to the extent such representations or warranties relate solely to an
earlier date, in which case such representations and warranties shall have been
true and correct in all Material respects on and as of such earlier date.
(d) No Bonded Stop Notice or Filed Mechanics Lien. As of each
Funding Date, and as to any Funded Amount requested for any Leased Property on
each such Funding Date, (i) neither the Lessor, the Agent nor any Lender has
received (with respect to such Leased Property) a bonded notice to withhold Loan
funds that has not been discharged by the related Lessee or the Construction
Agent, and (ii) no mechanic's liens or materialman's liens have been filed
against such Leased Property that have not been discharged by the related
Lessee, bonded over in a manner reasonably satisfactory to the Agent or insured
over by the Title Insurance Company.
(e) Lease Supplement. If the Funding relates to a Building
that will be leased under a Lease Supplement separate from the Lease Supplement
for the related Land, the original of such separate Lease Supplement, duly
executed by the related Lessee and the Lessor and in recordable form, shall have
been delivered to the Agent.
SECTION 3.5 Completion Date Conditions. The occurrence of the
Completion Date with respect to any Leased Property shall be subject to the
fulfillment to the satisfaction of, or waiver by, each party hereto (acting
directly or through its counsel) of the following conditions precedent:
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(a) Title Policy Endorsements; Architect's Certificate. If
such Leased Property is a Major Property, the Construction Agent shall have
furnished to each Funding Party (1) the following endorsements to the related
Title Policy (each of which shall be subject to no exceptions other than those
reasonably acceptable to the Agent): a date-down endorsement (redating and
confirming the coverage provided under the Title Policy and each endorsement
thereto) and a "Form 9" endorsement (if available in the applicable
jurisdiction), in each case, effective as of a date not earlier than the date of
completion of the Construction, and (2) a certificate of the Architect dated at
or about the Completion Date, in form and substance reasonably satisfactory to
the Agent, the Lessor and the Lenders, and stating that (i) the related Building
has been completed substantially in accordance with the Plans and Specifications
therefor, and such Leased Property is ready for occupancy, (ii) such Plans and
Specifications comply in all Material respects with all Material Applicable Laws
in effect at such time, and (iii) to the best of the Architect's knowledge, such
Leased Property, as so completed, complies in all Material respects with all
Material Applicable Laws in effect at such time. If such Leased Property is a
Major Property, the Construction Agent shall also deliver to the Agent true and
complete copies of: (A) an "as built" or "record" set of the Plans and
Specifications, (B) a plat of survey of such Leased Property "as built" to a
standard reasonably acceptable to the Agent showing all easements, paving,
driveways, fences and exterior improvements, and (C) copies of a certificate or
certificates of occupancy for such Leased Property or other legally equivalent
permission to occupy such Leased Property.
(b) Construction Completion. The related Construction shall
have been completed substantially in accordance with the related Plans and
Specifications, the related Deed and all Applicable Laws, and such Leased
Property shall be ready for occupancy and operation. All fixtures, equipment and
other property contemplated under the Plans and Specifications to be
incorporated into or installed in such Leased Property shall have been
substantially incorporated or installed, free and clear of all Liens except for
Permitted Liens.
(c) Construction Agent Certification. The Construction Agent
shall have furnished the Lessor, the Agent and each Lender with a certification
of the Construction Agent (substantially in the form of Exhibit H) that:
(i) all amounts owing to third parties for the
related Construction have been paid in full (other than contingent
obligations for which the Construction Agent has made adequate
reserves), and no litigation or proceedings are pending, or to the best
of the Construction Agent's knowledge, are threatened, against such
Leased Property or the Construction Agent or the related Lessee which
could reasonably be expected to have a Materially Adverse Effect;
(ii) all Material consents, licenses and permits and
other governmental authorizations or approvals required for such
Construction and operation of such Leased Property have been obtained
and are in full force and effect;
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(iii) such Leased Property has available all services
of public facilities and other utilities necessary for use and
operation of such Leased Property for its intended purposes including,
without limitation, adequate water, gas and electrical supply, storm
and sanitary sewerage facilities, telephone, other required public
utilities and means of access between the related Building and public
highways for pedestrians and motor vehicles;
(iv) all Material agreements, easements and other
rights, public or private, which are necessary to permit the lawful use
and operation of such Leased Property as the related Lessee intends to
use the Leased Property under the related Lease and which are necessary
to permit the lawful intended use and operation of all then intended
utilities, driveways, roads and other means of egress and ingress to
and from the same have been obtained and are in full force and effect
and neither the Construction Agent nor the related Lessee has any
knowledge of any pending modification or cancellation of any of the
same; and the use of such Leased Property does not depend on any
variance, special exception or other municipal approval, permit or
consent that has not been obtained and is in full force and effect for
its continuing legal use;
(v) all of the requirements and conditions set forth
in Section 3.5(b) hereof have been completed and fulfilled with respect
to such Leased Property and the related Construction; and
(vi) such Leased Property is in compliance in all
Material respects with all applicable zoning laws and regulations.
SECTION 3.6 Addition of Lessees. After the date hereof, additional
Subsidiaries of Dollar may become Lessees hereunder and under the other
Operative Documents upon satisfaction of the following conditions precedent:
(a) such Subsidiary and the Guarantor shall have executed and
delivered to the Agent and the Lessor a Joinder Agreement,
substantially in the form of Exhibit E;
(b) such Subsidiary shall have delivered to each of the Agent
and the Lessor (x) a certificate of the Secretary or an Assistant
Secretary of such Subsidiary, attaching and certifying as to (i) the
Board of Directors' resolution duly authorizing the execution, delivery
and performance by it of each Operative Document to which it is or will
be a party, (ii) the incumbency and signatures of persons authorized to
execute and deliver such documents on its behalf, (iii) its certificate
of incorporation, certified as of a recent date by the Secretary of
State of its incorporation and (iv) its by-laws, and (y) good standing
certificates from the appropriate offices of the States of such
Subsidiary's incorporation and principal place of business;
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(c) such Subsidiary shall have delivered an opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇, addressed to each of the Lessor, the Agent and the Lenders,
substantially in the form set forth in Exhibit G-1;
(d) such Subsidiary shall have executed and delivered a Lease
to each Funding Party and the original, chattel paper copy of such
Lease shall have been delivered to the Agent; and
(e) the Agent, the Lessor and the Lenders shall have received
such other documents, certificates and information as any of them shall
have reasonably requested.
SECTION 4
REPRESENTATIONS
SECTION 4.1 Representations of Lessee. Effective as of the date of
execution hereof (or as of the related Joinder Agreement, as applicable), as of
each Closing Date and as of each Funding Date, each Lessee represents and
warrants to each of the other parties hereto as follows:
(a) Organization; Corporate Powers. Each of such Lessee and
each of its Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) is duly qualified as a foreign corporation and in good standing (A) in each
jurisdiction where a Leased Property is located, in the case of such Lessee, and
(B) under the laws of each other jurisdiction where such qualification is
required and where the failure to be duly qualified and in good standing would
have a Materially Adverse Effect, in the case of such Lessee and each of its
Subsidiaries, and (iii) has all requisite corporate power and authority to own,
operate and encumber its property and assets and to conduct its business as
presently conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by the Operative
Documents.
(b) Authority. (i) Such Lessee has the requisite corporate
power and authority to execute, deliver and perform the Operative Documents
executed by it, or to be executed by it.
(ii) The execution, delivery and performance (or recording or
filing, as the case may be) of the Operative Documents, and the consummation of
the transactions contemplated thereby, have been duly approved by the Board of
Directors of such Lessee, or an appropriate committee thereof, and no other
corporate proceedings on the part of such Lessee are necessary to consummate the
transactions so contemplated.
(c) Binding Obligations. The Operative Documents executed by
such Lessee, have been duly executed and delivered (or recorded or filed, as the
case may be) by such Lessee, and constitute its legal, valid and binding
obligation, enforceable against it in accordance with their respective terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or limiting creditors' rights generally or
by equitable principles generally.
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(d) No Conflict. The execution, delivery and performance by
such Lessee of each Operative Document to which it is a party and each of the
transactions contemplated thereby do not and will not (i) violate any Applicable
Law or Contractual Obligation of any Person the consequences of which violation,
singly or in the aggregate, would have a Materially Adverse Effect, (ii) result
in or require the creation or imposition of any Lien whatsoever on any Leased
Property or upon any of the properties or assets of such Lessee or any of its
Subsidiaries (other than Permitted Liens), or (iii) require any approval of
stockholders of such Lessee which has not been obtained.
(e) Governmental Consents. Except as have been made, obtained
or given, and are in full force and effect, and except for routine filings with
the SEC to be made in a timely fashion, no filing or registration with, consent
or approval of, notice to, with or by any Governmental Authority, is required to
authorize, or is required in connection with, the execution, delivery and
performance by such Lessee of the Operative Documents, the use of the proceeds
of the Fundings made to effect the purchase of the Land and the Construction, or
the legality, validity, binding effect or enforceability of any Operative
Document.
(f) Governmental Regulation. Neither such Lessee nor any
Subsidiary of such Lessee is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. Such Lessee is not a "holding company" or a "subsidiary
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Company Act of
1935, as amended, nor subject to regulation under the Federal Power Act, or any
foreign, federal or local statute or regulation limiting its ability to incur
Indebtedness for Money Borrowed, Guaranty such indebtedness, pledge its assets
to secure such indebtedness or enter into lease arrangements.
(g) Requirements of Law. Such Lessee and each Subsidiary of
such Lessee and each Person acting on behalf of any of them is in compliance
with all Requirements of Law applicable to them and their respective businesses,
in each case where the failure to so comply would have a Materially Adverse
Effect, either individually or together with other such cases.
(h) Rights in Respect of the Leased Property. Such Lessee is
not a party to any contract or agreement to sell any interest in any Leased
Property or any part thereof, other than pursuant to the Operative Documents.
(i) Hazardous Materials - Leased Properties. (i) To the best
knowledge of such Lessee, except as described in the related
Environmental Audit, on the Closing Date for each Leased Property,
there are no Hazardous Materials present at, upon, under or within such
Leased Property or released or transported to or from such Leased
Property (except in compliance in all Material respects with all
Applicable Law).
(ii) On the related Closing Date, no Governmental
Actions have been taken or, to the best knowledge of such Lessee, are
in process or have been threatened,
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which could reasonably be expected to subject such Leased Property, any
Lender or the Lessor with respect to such Leased Property to any Claims
or Liens under any Environmental Law which would have a Materially
Adverse Effect, or would have a Materially adverse effect on the Lessor
or any Lender.
(iii) Such Lessee has, or will obtain on or before
the date required by Applicable Law, all Environmental Permits
necessary to operate such Leased Property in accordance with
Environmental Laws and is complying with and has at all times complied
with all such Environmental Permits, except to the extent the failure
to obtain such Environmental Permits or to so comply would not have a
Materially Adverse Effect.
(iv) Except as set forth in the related Environmental
Audit or in any notice subsequently furnished by such Lessee to the
Agent and approved by the Agent in writing prior to the respective
times that the representations and warranties contained herein are made
or deemed made hereunder, no notice, notification, demand, request for
information, citations, summons, complaint or order has been issued or
filed to or with respect to such Lessee, no penalty has been assessed
on such Lessee and no investigation or review is pending or, to its
best knowledge, threatened by any Governmental Authority or other
Person in each case relating to the Leased Property with respect to any
alleged Material violation or liability of such Lessee under any
Environmental Law. To the best knowledge of such Lessee, no Material
notice, notification, demand, request for information, citations,
summons, complaint or order has been issued or filed to or with respect
to any other Person, no Material penalty has been assessed on any other
Person and no investigation or review is pending or threatened by any
Governmental Authority or other Person relating to such Leased Property
with respect to any alleged Material violation or liability under any
Environmental Law by any other Person.
(v) Such Leased Property and each portion thereof are
presently in compliance in all Material respects with all Environmental
Laws, and, to the best knowledge of such Lessee, there are no present
or past facts, circumstances, activities, events, conditions or
occurrences regarding such Leased Property (including without
limitation the release or presence of Hazardous Materials) that could
reasonably be anticipated to (A) form the basis of a Material Claim
against such Leased Property, any Funding Party or such Lessee,
(B) cause such Leased Property to be subject to any Material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law, (C) require the filing or recording of any notice or
restriction relating to the presence of Hazardous Materials in the real
estate records in the county or other appropriate municipality in which
such Leased Property is located, or (D) prevent or Materially interfere
with the continued operation and maintenance of such Leased Property as
contemplated by the Operative Documents.
(j) Leased Property. The present condition and use of
such Leased Property conforms in all Material respects with all conditions or
requirements of all existing Material permits and approvals issued with respect
to such Leased Property, and the present use of such
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Leased Property and such Lessee's future intended use of such Leased Property
under the related Lease does not, in any Material respect, violate any
Applicable Law. To the best knowledge of such Lessee, no Material notices,
complaints or orders of violation or non-compliance have been issued or
threatened or contemplated by any Governmental Authority with respect to such
Leased Property or any present or intended future use thereof. All Material
agreements, easements and other rights, public or private, which are necessary
to permit the lawful use and operation of such Leased Property as such Lessee
intends to use such Leased Property under the related Lease and which are
necessary to permit the lawful intended use and operation of all presently
intended utilities, driveways, roads and other means of egress and ingress to
and from the same have been, or to such Lessee's best knowledge will be,
obtained and are or will be in full force and effect, and such Lessee has no
knowledge of any pending Material modification or cancellation of any of the
same.
(k) True and Complete Disclosure. All factual information
relating to such Lessee, or any of its assets or its financial condition, or any
of the Leased Properties heretofore or contemporaneously furnished by such
Lessee or on its behalf in writing to any Funding Party (including without
limitation all information contained in the Operative Documents) for purposes of
or in connection with any transaction contemplated by this Master Agreement is,
and all other such factual information hereafter furnished by such Lessee or on
its behalf in writing to any Funding Party will be, true and accurate in all
Material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any Material fact necessary to make such
information, together with past written information supplied hereunder (taken as
a whole) not misleading at such time in light of the circumstances under which
such information was provided.
(l) Financial Statements. The consolidated statement of
financial position of Dollar as of January 31, 1997 and the related statements
of income, shareholders' equity and cash flows for the fiscal year then ended,
reported on by Coopers and ▇▇▇▇▇▇▇ and the consolidated statements of financial
position of Dollar as of May 2, 1997 and the related statements of income,
shareholders' equity and cash flows for the three months then ended, in each
case, a copy of which has been delivered to each of the Funding Parties, present
fairly in all Material respects, in conformity with GAAP (subject, in the case
of the quarterly financial statements, to normal year-end audit adjustments and
the absence of certain notes), the consolidated financial position of Dollar and
its Subsidiaries as of such dates and the results of operations and cash flows
of Dollar and its Subsidiaries for such fiscal year or other period then ended.
The Consolidated Companies taken as a whole did not have any Material contingent
obligations, contingent liabilities or Material liabilities for known taxes,
long-term leases or unusual forward or long-term commitments required to be
reflected in the foregoing financial statements or the notes thereto that are
not so reflected.
(m) No Material Litigation. Except as set forth in Schedule
4.1(m), no litigation, investigations or proceedings of or before any court,
tribunal, arbitrator or governmental authority is pending or, to the knowledge
of any Executive Officer of such Lessee, threatened by or against any of the
Consolidated Companies, or against any of their respective Properties or
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revenues, existing or future (a) with respect to any Operative Document, or any
of the transactions contemplated hereby or thereby, or (b) which, if adversely
determined, is reasonably likely to have a Materially Adverse Effect.
(n) Margin Regulations. No part of the proceeds of any of
the Fundings will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
(o) Subsidiaries. The jurisdiction of incorporation or
organization, and the ownership of all issued and outstanding capital stock, for
each Subsidiary of Dollar as of the date of this Master Agreement is accurately
described on Schedule 4.1(o). Schedule 4.1(o) may be updated from time to time
by Dollar by giving written notice thereof to the Agent.
(p) Compliance With Environmental Laws.
(i) The Consolidated Companies have received no
notices of claims or potential liability under, and are in
compliance with, all applicable Environmental Laws, where such
claims and liabilities under, and failures to comply with,
such statutes, regulations, rules, ordinances, laws or
licenses, is reasonably likely to result in penalties, fines,
claims or other liabilities to the Consolidated Companies in
amounts that would have a Materially Adverse Effect, either
individually or in the aggregate (including any such
penalties, fines, claims, or liabilities relating to the
matters set forth on Schedule 4.1(p)), except as set forth on
Schedule 4.1(p)).
(ii) Except as set forth on Schedule 4.1(p), none of
the Consolidated Companies has received any notice of
violation, or notice of any action, either judicial or
administrative, from any governmental authority (whether
United States or foreign) relating to the actual or alleged
violation of any Environmental Law, including, without
limitation any notice of any actual or alleged spill, leak, or
other release of any Hazardous Substance, waste or hazardous
waste by any Consolidated Company or its employees or agents,
or as to the existence of any continuation on any Properties
owned by any Consolidated Company, where any such violation,
spill, leak, release or contamination is reasonably likely to
result in penalties, fines, claims or other liabilities to the
Consolidated Companies in amounts that would have a Materially
Adverse Effect, either individually or in the aggregate.
(iii) Except as set forth on Schedule 4.1(p), the
Consolidated Companies have obtained all necessary
governmental permits, licenses and approvals for the
operations conducted on their respective Properties, including
without limitation, all required Material permits, licenses
and approvals for (i) the emission of air pollutants or
contaminants, (ii) the treatment or pretreatment and discharge
of waste water or storm water, (iii) the treatment, storage,
disposal or generation of hazardous wastes, (iv) the
withdrawal and usage of ground water or surface water,
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and (v) the disposal of solid wastes, in any such case where
the failure to have such license, permit or approval is
reasonably likely to have a Materially Adverse Effect.
(q) Insurance. The Consolidated Companies currently maintain
such insurance with respect to their Properties and business with financially
sound and reputable insurers, and in such amounts and having such coverages
against losses and damages which the Lessee in the exercise of its reasonable
prudent business judgment has determined to be necessary to prevent the
Consolidated Companies from experiencing a loss which would cause a Materially
Adverse Effect. The Consolidated Companies have paid all Material amounts of
insurance premiums now due and owing with respect to such insurance policies and
coverages, and such policies and coverages are in full force and effect.
(r) No Default. None of the Consolidated Companies is in
default under or with respect to any Contractual Obligation in any respect which
has had or is reasonably likely to have a Materially Adverse Effect.
(s) No Burdensome Restrictions. Except as set forth on
Schedule 4.1(s), none of the Consolidated Companies is a party to or bound by
any Contractual Obligation or Requirement of Law or any provision of its
respective articles or certificates of incorporation, bylaws, or other
organizational or governing documents which has had or is reasonably likely to
have a Materially Adverse Effect.
(t) Taxes. The Consolidated Companies have filed all Federal
tax returns and, to the knowledge of any Executive Officer of the Lessee, the
Consolidated Companies have filed all other tax returns which are required to
have been filed in any jurisdiction; the Consolidated Companies have paid all
taxes shown to be due and payable on such Federal returns and other returns and
all other taxes, assessments, fees and other charges payable by them, in each
case, to the extent the same have become due and payable and before they have
become delinquent, except for the filing of any such returns or the payment of
any taxes, assessments, fees and other charges the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which any Consolidated Company has set aside on
its books reserves (segregated to the extent required by GAAP) deemed by it in
good faith to be adequate. Such Lessee has not received written notice of any
proposed Material tax assessment with respect to Federal income taxes against
any of the Consolidated Companies nor does any Executive Officer of such Lessee
know of any Material Federal income tax liability on the part of the
Consolidated Companies other than any such assessment or liability which is
adequately reserved for on the books of the Consolidated Companies in accordance
with GAAP.
(u) Subsidiaries. Except as disclosed on Schedule 4.1(u),
Dollar has no Subsidiaries and neither Dollar nor any Subsidiary is a joint
venture partner or general partner in any partnership. Schedule 4.1(u) may be
updated from time to time by Dollar by giving written notice thereof to the
Agent.
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(v) ERISA. Except as disclosed on Schedule 4.1(v):
(i) Identification of Plans. None of the Consolidated
Companies nor any of their respective ERISA Affiliates
maintains or contributes to, or has during the past seven
years maintained or contributed to, any Plan that is subject
to Title IV of ERISA;
(ii) Compliance. Each Plan maintained by the
Consolidated Companies has at all times been maintained, by
their terms and in operation, in compliance with all
applicable laws, and the Consolidated Companies are subject to
no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including
without limitation, any tax or penalty under Title I or Title
IV of ERISA or under Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 162,
404, or 419 of the Tax Code, where the failure to comply with
such laws, and such taxes and penalties, together with all
other liabilities referred to in this Section 4.1(v) (taken as
a whole), would in the aggregate have a Materially Adverse
Effect;
(iii) Liabilities. The Consolidated Companies are
subject to no liabilities (including withdrawal liabilities)
with respect to any Plans of such Consolidated Companies or
any of their ERISA Affiliates, including without limitation,
any liabilities arising from Titles I or IV of ERISA, other
than obligations to fund benefits under an ongoing Plan and to
pay current contributions, expenses and premiums with respect
to such Plans, where such liabilities, together with all other
liabilities referred to in this Section 4.1(v) (taken as a
whole), would in the aggregate have a Materially Adverse
Effect;
(iv) Funding. The Consolidated Companies and, with
respect to any Plan which is subject to Title IV of ERISA,
each of their respective ERISA Affiliates, have made full and
timely payment of all amounts (A) required to be contributed
under the terms of each Plan and applicable law, and (B)
required to be paid as expenses (including PBGC or other
premiums) of each Plan, where the failure to pay such amounts
(when taken as a whole, including any penalties attributable
to such amounts) would have a Materially Adverse Effect. No
Plan subject to Title IV of ERISA has an "amount of unfunded
benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA), determined as if such Plan terminated on any date on
which this representation and warranty is deemed made, in any
amount which, together with all other liabilities referred to
in this Section 4.1(v). (taken as a whole), would have a
Materially Adverse Effect if such amount were then due and
payable. The Consolidated Companies are subject to no
liabilities with respect to post-retirement medical benefits
in any amounts which, together with all other liabilities
referred to in this Section 4.1(v)(taken as a whole), would
have a Materially Adverse Effect if such amounts were then due
and payable.
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(w) Patents, Trademarks, Licenses, Etc. Except as set forth on
Schedule 4.1(w), (i) the Consolidated Companies have obtained and hold in full
force and effect all Material governmental authorizations, consents, approvals,
patents, trademarks, service marks, franchises, trade names, copyrights,
licenses and other such rights, free from burdensome restrictions, which are
necessary for the operation of their respective businesses as presently con
ducted, and (ii) to the best of Lessee's knowledge, no product, process, method,
service or other item presently sold by or employed by any Consolidated Company
in connection with such business infringes any patents, trademark, service ▇▇▇▇,
franchise, trade name, copyright, license or other right owned by any other
Person and there is not presently pending, or to the knowledge of Lessee,
threatened, any claim or litigation against or affecting any Consolidated
Company contesting such Person's right to sell or use any such product, process,
method, substance or other item where the result of such failure to obtain and
hold such benefits or such infringement would have a Materially Adverse Effect.
(x) Ownership of Property; Liens.
(i) Except as set forth on Schedule 4.1(x), (i) each
Consolidated Company has good and marketable fee simple title
to or a valid leasehold interest in all of its real property
and good title to all of its other Property, as such
Properties are reflected in the consolidated balance sheet of
the Consolidated Companies as of May 2, 1997, except where the
failure to hold such title, leasehold interest, or possession
would not have a Materially Adverse Effect, other than
Properties disposed of in the ordinary course of business
since such date or as otherwise permitted by the terms of this
Master Agreement, subject to no known Lien or title defect of
any kind, except Liens permitted hereunder and (ii) the
Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases except where
the failure to enjoy peaceful and undisturbed possession would
not have a Materially Adverse Effect.
(ii) As of the date of this Master Agreement, the
Property owned by each Consolidated Company is not subject to
any Lien securing any Indebtedness or other obligation of such
Consolidated Company in excess of $2,500,000 individually or
in the aggregate, other than as described on Schedule 4.1(x)
hereof.
(y) Indebtedness. Other than as described on Schedule 4.1(y),
and as of the date hereof, the Consolidated Companies, on a consolidated basis,
are not obligors (singularly or in the aggregate) in respect of any Indebtedness
for Borrowed Money in excess of $2,500,000 or any commitment to create or incur
any Indebtedness for Borrowed Money in excess of $2,500,000.
(z) Financial Condition. On the Initial Closing Date and after
giving effect to the transactions contemplated by this Master Agreement and the
other Operative Documents, the Property of each Consolidated Company at fair
valuation and based on their present fair saleable
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value will exceed such Consolidated Company's debts, including contingent
liabilities, (ii) the remaining capital of such Consolidated Company will not be
unreasonably small to conduct such Consolidated Company's business, and (iii)
such Consolidated Company will not have incurred debts, or have intended to
incur debts, beyond the Consolidated Company's ability to pay such debts as they
mature. For purposes of this Section 4.1(z), "debt" means any liability on a
claim, and "claim" means (a) the right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (b)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(aa) Labor Matters. Except as set forth in Schedule 4.1(aa),
the Consolidated Companies have experienced no strikes, labor disputes, slow
downs or work stoppages due to labor disagreements which is reasonably likely to
have, a Materially Adverse Effect, and, to the best knowledge of the Executive
Officers of such Lessee, there are no such strikes, disputes, slow downs or work
stoppages threatened against any Consolidated Company except as disclosed in
writing to the Agent. The hours worked and payment made to employees of the
Consolidated Companies have not been in violation in any Material respect of the
Fair Labor Standards Act or any other applicable law dealing with such matters,
and all payments due from the Consolidated Companies, or for which any claim may
be made against the Consolidated Companies, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies, in each case where the
failure to comply with such laws or to pay or accrue such liabilities is
reasonably likely to have a Materially Adverse Effect.
(bb) Payment or Dividend Restrictions. Except as described on
Schedule 4.1(bb), none of the Consolidated Companies is party to or subject to
any agreement or understanding restricting or limiting the payment of any
dividends or other distributions by any such Consolidated Company.
(cc) Financial Projections. The financial projections and
other pro forma financial information delivered to the Agent or any Lender above
were based on good faith estimates and assumptions believed by the applicable
Consolidated Companies to be reasonable at the time made and at the time
furnished to the Agent and/or any Lender, it being recognized by the Lenders
that such projections and other pro forma financial information as to future
events such projections and other pro forma financial information may differ
from the projected results for such period or periods.
(dd) Notice of Violations. Such Lessee has not received
notice, and no Consolidated Company has received notice, that it is in violation
of any Requirement of Law, judgment, court order, rule, or regulation that would
be expected to have a Materially Adverse Effect.
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(ee) Filings. Such Lessee has filed all reports and statements
required to be filed with the Securities and Exchange Commission. As of their
respective dates, the reports and statements referred to above complied in all
Material respects with all rules and regulations promulgated by the Securities
and Exchange Commission and did not contain any untrue statement of a Material
fact or omit to state a Material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
SECTION 4.2 Representations of the Lessor. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, in each
case, with respect to each of the Leased Properties, the Lessor represents and
warrants to the Agent, the Lenders and the Lessees as follows:
(a) Securities Act. The interest being acquired or to be
acquired by the Lessor in such Leased Property is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that the Lessor shall be entitled to assign, convey or transfer its
interest in accordance with Section 6.1.
(b) Due Organization, etc. The Lessor is a limited partnership
duly organized and validly existing in good standing under the laws of Texas and
each state in which a Leased Property is located and has full power, authority
and legal right to execute, deliver and perform its obligations under the Lease,
this Master Agreement and each other Operative Document to which it is or will
be a party.
(c) Due Authorization; Enforceability, etc. This Master
Agreement and each other Operative Document to which the Lessor is or will be a
party have been or will be duly authorized, executed and delivered by or on
behalf of the Lessor and are, or upon execution and delivery will be, legal,
valid and binding obligations of the Lessor enforceable against it in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by general equitable principles.
(d) No Conflict. The execution and delivery by the Lessor of
the Leases, this Master Agreement and each other Operative Document to which the
Lessor is or will be a party, are not or will not be, and the performance by the
Lessor of its obligations under each will not be, inconsistent with its
Partnership Agreement, do not and will not contravene any Applicable Law and do
not and will not contravene any provision of, or constitute a default under, any
Contractual Obligation of Lessor, do not and will not require the consent or
approval of, the giving of notice to, the registration with or taking of any
action in respect of or by, any Governmental Authority, except such as have been
obtained, given or accomplished, and the Lessor possesses all requisite
regulatory authority to undertake and perform its obligations under the
Operative Documents.
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(e) Litigation. There are no pending or, to the knowledge of
the Lessor, threatened actions or proceedings against the Lessor before any
court, arbitrator or administrative agency with respect to any Operative
Document or that would have a Material adverse effect upon the ability of the
Lessor to perform its obligations under this Master Agreement or any other
Operative Documents to which it is or will be a party.
(f) Lessor Liens. No Lessor Liens (other than those created by
the Operative Documents) exist on any Closing Date on the Leased Property, or
any portion thereof, and the execution, delivery and performance by the Lessor
of this Master Agreement or any other Operative Document to which it is or will
be a party will not subject the Leased Property, or any portion thereof, to any
Lessor Liens (other than those created by the Operative Documents).
(g) Employee Benefit Plans. The Lessor is not and will not be
making its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
(h) General Partner. The sole general partner of the Lessor is
Atlantic Financial Managers, Inc.
(i) Financial Information. (A) The unaudited balance sheet of
the Lessor as of December 31, 1996 and the related statements of income,
partners' capital and cash flows for the year then ended, copies of which have
been delivered to the Agent, fairly present, in conformity with sound accounting
principles, the financial condition of the Lessor as of such dates and the
results of operations and cash flows for such periods.
(B) Since December 31, 1996, there has been no event, act,
condition or occurrence having a Material adverse effect upon the financial
condition, operations, performance or properties of the Lessor, or the ability
of the Lessor to perform in any Material respect under the Operative Documents.
(j) No Offering. The Lessor has not offered the Notes to any
Person in any manner that would subject the issuance thereof to registration
under the Securities Act.
SECTION 4.3 Representations of each Lender. Effective as of the date of
execution hereof, as of each Closing Date and as of each Funding Date, each
Lender represents and warrants to the Lessor and to the Lessees as follows:
(a) Securities Act. The interest being acquired or to be
acquired by such Lender in the Funded Amounts is being acquired for its own
account, without any view to the distribution thereof or any interest therein,
provided that such Lender shall be entitled to assign, convey or transfer its
interest in accordance with Section 6.2. Such Lender is an accredited investor
as that term is defined in Rule 501(a) under the Securities Act.
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(b) Employee Benefit Plans. Such Lender is not and will not be
making its investment hereunder, and is not performing its obligations under the
Operative Documents, with the assets of an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA, or "plan" (as
defined in Section 4975(e)(1)) of the Code.
SECTION 5
COVENANTS OF THE LESSEES AND THE LESSOR
SECTION 5.1 Affirmative Covenants. Each Lessee will:
(a) Corporate Existence, Etc. Preserve and maintain, and cause
each of the Consolidated Companies to preserve and maintain, its corporate
existence, its Material rights, franchises, and licenses, and its Material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect.
(b) Compliance with Laws, Etc. Comply, and cause each
Consolidated Company to comply, with all Requirements of Law and Contractual
Obligations applicable to or binding on any of them where the failure to comply
with such Requirements of Law and Contractual Obligations would reasonably be
expected to have a Materially Adverse Effect.
(c) Payment of Taxes and Claims, Etc. File and cause each
Consolidated Company to file all Federal, state, local and foreign tax returns
that are required to be filed by each of them and pay all taxes that have become
due pursuant to such returns or pursuant to any assessment in respect thereof
received by any Consolidated Company; and each Consolidated Company will pay or
cause to be paid all other taxes, assessments, fees and other governmental
charges and levies which, to the knowledge of any of the Executive Officers of
any Consolidated Company, are due and payable before the same become delinquent,
except any such taxes and assessments as are being contested in good faith by
appropriate and timely proceedings and as to which adequate reserves have been
established in accordance with GAAP.
(d) Keeping of Books. Keep, and cause each Consolidated
Company to keep, proper books of record and account, containing complete and
accurate entries of all their respective financial and business transactions.
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(e) Visitation, Inspection, Etc. Permit, and cause each
Consolidated Company to permit, any representative of the Lessor, the Agent or
any Lender, at the Lessor's, the Agent's or such Lender's expense, to visit and
inspect any of its Property, to examine its books and records and to make copies
and take extracts therefrom, and to discuss its affairs, finances and accounts
with its officers, all at such reasonable times and as often as the Lessor, the
Agent or such Lender may reasonably request after reasonable prior notice to
Dollar; provided, however, that at any time following the occurrence and during
the continuance of a Potential Event of Default or an Event of Default, no prior
notice to Dollar shall be required.
(f) Insurance; Maintenance of Properties.
(i) Maintain or cause to be maintained with
financially sound and reputable insurers, such insurance with
respect to its Properties and business in such amounts as
Dollar has determined in the exercise of its reasonable
prudent business judgment is necessary to prevent the
Consolidated Companies, singularly or in the aggregate from
experiencing a loss which would cause a Materially Adverse
Effect.
(ii) Cause, and cause each of the Consolidated
Companies to cause, all Properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and cause to be made all necessary
repairs, renewals, replacements, settlements and improvements
thereof, all as in the reasonable judgment of Dollar may be
necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent Dollar from discontinuing the operation or maintenance
of any such Properties if such discontinuance is, in the
reasonable judgment of Dollar, desirable in the conduct of its
business or the business of any Consolidated Company.
(iii) Cause a summary, set forth in format and detail
reasonably acceptable to the Agent, of the types and amounts
of insurance (property and liability) maintained by the
Consolidated Companies to be delivered to the Agent on or
before thirty (30) days after the Initial Closing Date.
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(g) Financial Reports. Furnish to the Lessor, the
Agent and each Lender:
(i) Within fifty (50) days after the end of each of
the first three quarter-annual periods of each Fiscal Year
(and, in any event, in each case as soon as prepared), the
quarterly Financial Report of Dollar as of the end of that
period, prepared on a consolidated basis and accompanied by a
certificate, dated the date of furnishing, signed by a
Financial Officer of Dollar to the effect that such Financial
Report accurately presents in all Material respects the
consolidated financial condition of the Consolidated Companies
and that such Financial Report has been prepared in accordance
with GAAP consistently applied (subject to year end
adjustments), except that such Financial Report need not be
accompanied by notes.
(ii) Within one hundred (100) days after the end of
each Fiscal Year (and, in any event, as soon as available),
the annual Financial Report of Dollar (with accompanying
notes) for that Fiscal Year prepared on a consolidated basis
(which Financial Report shall be reported on by Dollar's
independent certified public accountants, such report to state
that such Financial Report fairly presents in all Material
respects the consolidated financial condition and results of
operation of the Consolidated Companies in accordance with
GAAP and to be without any Material qualifications or
exceptions). The audit opinion in respect of the consolidated
Financial Report shall be the unqualified opinion of one of
the nationally recognized "Big Six" firms of independent
certified public accountants acceptable to Agent.
(iii) Within fifty (50) days after the end of each of
its first three quarterly accounting periods and within one
hundred (100) days after the end of each Fiscal Year, a
statement certified as true and correct by a Financial Officer
of Dollar, substantially in the form of Exhibit K hereto, with
back-up material setting forth in reasonable detail such
calculations attached thereto and stating whether any
Potential Event of Default or Event of Default has occurred
and is continuing, and if a Default or Event of Default has
occurred and is continuing, stating Dollar's intentions with
respect thereto;
(iv) Within fifty (50) days after the end of each of
its quarterly accounting periods (including the year end
quarterly period), a statement certified as true
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and correct by a Financial Officer of Dollar setting forth the
Consolidated Funded Debt to Total Capitalization Ratio and the
Fixed Charge Coverage Ratio as of the last day of such
quarterly accounting
period.
(v) Promptly upon the filing thereof or otherwise
becoming available, copies of all financial statements,
annual, quarterly and special reports (including, without
limitation, Dollar's 8-K, 10-K, and 10-Q reports), proxy
statements and notices sent or made available generally by
Dollar to its public security holders, of all regular and
periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities
exchange or with the Securities and Exchange Commission, and
of all press releases and other statements made available
generally to the public containing Material developments in
the business or financial condition of Dollar and the other
Consolidated Companies.
(vi) Promptly upon receipt thereof, copies of all
financial statements of, and all reports submitted by,
independent public accountants to Dollar in connection with
each annual, interim, or special audit of Dollar's financial
statements, including without limitation, the comment letter
submitted by such accountants to management in connection with
their annual audit.
(vii) As soon possible and in any event within
thirty (30) days after Dollar or any Consolidated Company
knows or has reason to know that any "Reportable Event" (as
defined in Section 4043(b) of ERISA) with respect to any Plan
has occurred (other than such a Reportable Event for which the
PBGC has waived the 30-day notice requirement under Section
4043(a) of ERISA) and such Reportable Event involves a matter
that has had, or is reasonably likely to have, a Materially
Adverse Effect, a statement of a Financial Officer of the
applicable Consolidated Company setting forth details as to
such Reportable Event and the action which the applicable
Consolidated Company proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event
given to the PBGC if a copy of such notice is available to the
applicable Consolidated Company.
(viii) With reasonable promptness, such other
information relating to Dollar's performance of this Master
Agreement or its financial condition as may reasonably be
requested from time to time by the Agent.
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(ix) Concurrently with the furnishing of the annual
consolidated Financial Report required pursuant to Section
5.1(g)(ii) hereof, furnish or cause to be furnished to the
Lessor, the Agent and each Lender a certificate of compliance
in a form reasonably satisfactory to Agent prepared by one of
the nationally recognized "Big Six" accounting firms stating
that in making the examination necessary for their audit, they
have obtained no knowledge of any Potential Event of Default
or Event of Default, or if they have obtained such knowledge,
disclosing the nature, details and period of existence of such
event.
(h) Notices Under Certain Other Indebtedness. Immediately upon
its receipt thereof, furnish the Agent a copy of any notice received by it or
any other Consolidated Company from the holder(s) of Indebtedness (or from any
trustee, agent, attorney, or other party acting on behalf of such holder(s)) in
an amount which, in the aggregate, exceeds $2,500,000.00 where such notice
states or claims (i) the existence or occurrence of any default or event of
default with respect to such Indebtedness under the terms of any indenture, loan
or credit agreement, de benture, note, or other document evidencing or governing
such Indebtedness, or (ii) the existence or occurrence of any event or condition
which requires or permits holder(s) of any Indebtedness of the Consolidated
Companies to exercise rights under any Change in Control Provision.
(i) Notice of Litigation. Notify the Agent of any actions,
suits or proceedings instituted by any Person against the Consolidated Companies
where the uninsured portion of the money damages sought (which shall include any
deductible amount to be paid by Dollar or any Consolidated Company) is
singularly in an amount in excess of $15,000,000.00 or where unreserved amounts
in the aggregate are in excess of $15,000,000.00 or which is reasonably likely
to have a Materially Adverse Effect. Said notice is to be given along with the
quarterly and annual reports required by Section 5.1(g) hereof, and is to
specify the amount of damages being claimed or other relief being sought, the
nature of the claim, the Person instituting the action, suit or proceeding, and
any other significant features of the claim.
(j) Subsidiary Guaranties.
(i) Subject to subsection (iii) below, Dollar shall
cause all of the Consolidated Companies existing as of the
Initial Closing Date to execute and deliver on or before the
Initial Closing Date a Subsidiary Guaranty in substantially
the same form as set forth in Exhibit L. The delivery of
such documents shall be accompanied by such other
documents as the Agent may
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reasonably request (e.g., certificates of incorporation,
articles of incorporation and bylaws, membership operating
agreements, opinion letters and appropriate resolutions of the
Board of Directors of any such Subsidiary Guarantor).
(ii) Subject to subsection (iii) below, Dollar shall
cause each Consolidated Company not existing as of the Initial
Closing Date to execute and deliver Subsidiary Guaranties in
substantially the same form as set forth in Exhibit L
simultaneously with the creation or acquisition of any such
Consolidated Company by Dollar or any other such Consolidated
Company. The delivery of such documents shall be accompanied
by such other documents as the Agent may reasonably request
(e.g., certificates of incorporation, articles of
incorporation and bylaws, membership operating agreements,
opinion letters and appropriate resolutions of the Board of
Directors of any such Subsidiary Guarantor).
(iii) Notwithstanding the foregoing subsections (i)
and (ii), Dollar shall not be required to cause any
Consolidated Company to deliver a Subsidiary Guaranty if the
delivery of such documents would cause such Consolidated
Company to violate any Requirement of Law.
(k) Existing Business. Remain and cause each Consolidated
Company to remain engaged in business of the same general nature and type as
conducted on the Initial Closing Date.
(l) ERISA information and Compliance. Comply and cause each
Consolidated Company to comply with ERISA and all other applicable laws
governing any pension or profit sharing plan or arrangement to which any
Consolidated Company is a party. Dollar shall provide and shall cause each
Consolidated Company to provide Agent with notice of any "reportable event" or
"prohibited transaction" or the imposition of a "withdrawal liability" within
the meaning of ERISA.
(m) Financial Requirements. Not:
(i) Fixed Charge Coverage Ratio. Suffer or permit, as
of the last day of any fiscal quarter, the ratio of (A)
Consolidated EBITR to (B) the sum of (i) Consolidated Interest
Expense, plus (ii) Consolidated Rental Expense to be less than
2.0 to 1.0, as calculated for the most recently concluded
quarter and the immediately three (3) preceding fiscal
quarters.
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(ii) Consolidated Funded Debt to Total
Capitalization Ratio. Permit, as of the last day of
any fiscal quarter, the ratio of Consolidated Funded Debt to
Total Capitalization to be greater than .50 to 1.0.
(n) Liens. Not, and will not permit any Consolidated Company
to, create, assume or suffer to exist any Lien upon any of their respective
Properties whether now owned or hereafter acquired; provided, however, that this
Section 5.1(n) shall not apply to the following:
(i) any Lien for taxes not yet due or taxes or
assessments or other governmental charges which are being
actively contested in good faith by appropriate proceedings
and as to which adequate reserves have been established in
accordance with GAAP;
(ii) any customary Liens, pledges or deposits in
connection with worker's compensation, unemployment insurance,
or social security, or deposits incidental to the conduct of
the business of any Consolidated Company or the ownership of
any of their Properties which were not incurred in connection
with the borrowing of money or the obtaining of advances or
credit and which do not in the aggregate Materially detract
from the value of their Properties or Materially impair the
use thereof in the operation of their businesses;
(iii) any customary Liens to secure the performance
of tenders, statutory obligations, surety and appeal bonds,
and similar obligations and as to which adequate reserves have
been established in accordance with GAAP;
(iv) any Lien incurred in connection with Purchase
Money Indebtedness and placed upon any Property at the time of
its acquisition (or within 60 days thereafter) by any
Consolidated Company to secure all or a portion of the
purchase price therefor, provided that the aggregate
cumulative amount of Indebtedness secured by such purchase
money Liens must never exceed an amount equal to five percent
(5%) of Consolidated Net Worth (in calculating the amount of
any Purchase Money Indebtedness secured by a Lien for the
purpose of this Section 5.1(n), there shall be excluded
Purchase Money Indebtedness in an amount up to $10,000,000 per
distribution center under construction by any Consolidated
Company with the maximum exclusion, regardless of the number
of distribution centers under construction, of no more than
$20,000,000, provided
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that the Purchase Money Indebtedness incurred in connection
with the construction of a distribution center and the
purchase money Lien evidenced thereby is repaid and cancelled
within 90 days following the issuance of a certificate of
occupancy, or similar certification, for such distribution
center), and provided, that any such Lien shall not encumber
any other Properties of any Consolidated Company;
(v) statutory Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created
in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been
established in accordance with GAAP;
(vi) Liens consisting of encumbrances in the nature
of zoning restrictions, easements, rights and restrictions of
record on the use of real property on the date of the
acquisition thereof and statutory Liens of landlords and
lessors which in any case do not Materially detract from the
value of such real property or impair the use thereof;
(vii) any Lien in favor of the United States of
America or any department or agency thereof, or in favor of
any state government or political subdivision thereof, or in
favor of a prime contractor under a government contract of the
United States, or of any state government or any political
subdivision thereof, and, in each case, resulting from
acceptance of partial, progress, advance or other payments in
the ordinary course of business under government contracts of
the United States, or of any state government or any political
subdivision thereof, or subcontracts thereunder;
(viii) any Lien existing on the date hereof and
disclosed on the consolidated Financial Reports of
Dollar; and
(ix) statutory Liens arising under ERISA created in
the ordinary course of business for amounts not yet due and as
to which adequate reserves have been established in accordance
with GAAP.
(o) Merger and Sale of Assets. Not, without the prior written
consent of the Required Lenders, merge or consolidate with any other corporation
or sell, lease or transfer or otherwise dispose of all or, during any
twelve-month period, a Material part of its Property to any Person, nor permit
any
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Consolidated Company to take any of the above actions; provided that
notwithstanding any of the foregoing limitations, if no Potential Event of
Default or Event of Default shall then exist or immediately thereafter will
exist, Consolidated Companies may take the following actions:
(i) Any Consolidated Company may merge with (i)
Dollar (provided that Dollar shall be the continuing or
surviving corporation) or (ii) any one or more other
Subsidiaries provided that either the continuing or surviving
corporation shall remain a Consolidated Company;
(ii) Any Consolidated Company may sell, lease,
transfer or otherwise dispose of any of its assets to (i)
Dollar, or (ii) any other Consolidated Company; and
(iii) Dollar may sell for fair value Scottsville,
Kentucky office buildings (exclusive of its Scottsville,
Kentucky distribution center).
(p) Transactions with Affiliates. Not, and will not permit any
Consolidated Company to, enter into or be a party to any transaction or
arrangement with any Affiliate (including, without limitation, the purchase
from, sale to or exchange of property with, or the rendering of any service by
or for, any Affiliates), except in the ordinary course of and pursuant to the
reasonable requirements of such Consolidated Company's business and upon fair
and reasonable terms no less favorable to such Consolidated Company than such
party would obtain in a comparable arm's-length transaction with a Person other
than an Affiliate.
(q) Nature of Business. Not, and will not permit any
Consolidated Company to, 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 any Consolidated Company would be fundamentally changed from the
general nature of the business engaged in by the Consolidated Companies on the
date of this Master Agreement.
(r) Regulations G, T, U and X. Not, nor permit any
Consolidated Company to take any action that would result in any non-compliance
of the Advances made hereunder with Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System.
(s) ERISA Compliance. Not, and will not permit any
Consolidated Company to, incur any Material "accumulated funding deficiency"
within the meaning of Section 302(a)(2) of ERISA, or any Material liability
under Section 4062 of ERISA to the PBGC established thereunder in connection
with any Plan.
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(t) Investments, Loans, and Advances. Not, and will not permit
any Consolidated Company to, make or permit to remain outstanding any loans or
advances to or investments in any Person, except that, subject to all other
provisions of this Section 5.1(t), the foregoing restriction shall not apply to:
(i) investments in direct obligations of the
United States of America or any agency thereof having
maturities of less than one year;
(ii) investments in commercial paper maturing
within one year from the date of creation thereof of the
highest credit rating of a Rating Agency;
(iii) investments in bankers' acceptances and
certificates of deposit having maturities of less than one
year issued by commercial banks in the United States of
America having capital and surplus in excess of $50,000,000;
(iv) the endorsement of negotiable or similar
instruments in the ordinary course of business;
(v) investments in stock of any of the
Consolidated Companies;
(vi) investments in stock or assets, or any
combination thereof, of any Subsidiary created or
acquired after the Initial Closing Date;
(vii) investments received in settlement of debt
created in the ordinary course of business; and
(viii) advances to officers and employees of Dollar
made in the ordinary course of business and not in excess of
amounts customarily and historically loaned to such officers
and employees not to exceed $2,500,000 in the aggregate.
(u) Sales and Leasebacks. With regard to any Property owned by
Dollar or any Consolidated Company as of the date of this Master Agreement, Not,
and will not permit any Consolidated Company to, enter into any arrangement,
directly or indirectly, with any Person by which any Consolidated Entity shall
sell or transfer any such Property with a market value in excess of $35,000,000,
and by which any Consolidated Entity shall then or thereafter rent or lease as
lessee such Property or any part thereof or other Property that such
Consolidated Entity intends to use for substantially the same purpose or
purposes as the Property sold or transferred.
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With regard to any Property acquired by Dollar or any Consolidated
Company after the date of this Master Agreement, Dollar will not, and will not
permit any Consolidated Company, to enter into any arrangement, directly or
indirectly, with any Person by which any Consolidated Company shall sell or
transfer any such Property and by which any Consolidated Company shall then or
thereafter rent or lease as lessee such Property or any part thereof or other
Property that the Consolidated Company intends to use for substantially the same
purpose or purposes as the Property sold or transferred unless any such sale and
leaseback transaction is completed within a six-month period from the later of
the date the Property is acquired or the date such Property is placed into
service.
(v) Guaranties. Not, and will not permit any Consolidated
Company to, enter into any Guaranty, except that, subject to all other
provisions of this Section 5, the foregoing restriction shall not apply to:
(i) Subsidiary Guaranties;
(ii) the execution by Dollar of a Guaranty for the
Synthetic Lease;
(iii) Guaranties executed by one Consolidated
Company in favor of or to another Consolidated Company
for the obligations of another Consolidated Company;
(iv) endorsements of instruments for deposit or
collection in the ordinary course of business; and
(v) such other Guaranties that do not cause a breach
or violation of the Consolidated Funded Debt to Total
Capitalization Ratio.
(w) Limitation on Funded Debt. Not permit any
Consolidated Company and the Consolidated Companies in the
aggregate to incur or suffer to exist Funded Debt other than:
(i) Funded Debt of the Consolidated Companies
existing on the date of this Master Agreement and any
renewal, extension, refunding, or refinancing thereof;
(ii) Seasonal unsecured working capital lines of
credit incurred subsequent to the date that Dollar has used
one hundred percent (100%) of the Total Commitments (as
defined in the Credit Agreement) and provided that such
seasonal working capital lines of credit may remain
outstanding only for so long as one hundred percent (100%) of
the Total Commitments (as defined in the Credit Agreement)
remain outstanding;
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(iii) Purchase Money Indebtedness permitted by
Section 5.1(n);
(iv) Indebtedness incurred in connection with
stand-by letters of credit issued in the ordinary course of
business on the account of any Consolidated Company not to
exceed for all Consolidated Companies in the aggregate, an
outstanding amount in excess of $15,000,000; and
(v) Indebtedness incurred to First American National
Bank in connection with the financing of seasonal working
capital needs provided that the aggregate amount of such
indebtedness does not exceed $20,000,000.
(x) Acquisitions. Not permit any Consolidated Company to make
Acquisitions for a purchase price in excess of $25,000,000 in the aggregate in
any twelve (12) month period. For the purpose hereof, the purchase price shall
be determined by the sum of: (A) all cash paid, plus (B) the principal amount of
any promissory notes given, plus (C) the value of any stock given, and (D) the
value of any other Property given or transferred in respect of such Acquisition.
SECTION 5.2 Further Assurances. Upon the written request of the Lessor
or the Agent, each Lessee, at its own cost and expense, will cause all financing
statements (including precautionary financing statements), fixture filings and
other similar documents, to be recorded or filed at such places and times in
such manner, as may be necessary to preserve, protect and perfect the interest
of the Lessor, the Agent and the Lenders in the related Leased Property as
contemplated by the Operative Documents.
SECTION 5.3 Additional Required Appraisals. If, as a result of any
change in Applicable Law after the date hereof, an appraisal of all or any of
the Leased Property is required during the Lease Term under Applicable Law with
respect to any Funding Party's interest therein, such Funding Party's Funded
Amount with respect thereto or the Operative Documents, then the related Lessee
or Lessees shall pay the reasonable cost of such appraisal.
SECTION 5.4 Lessor's Covenants. The Lessor covenants and agrees that,
unless the Agent and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to
admit limited partners in connection with lease transactions similar to the
Transactions;
(b) it shall not incur any indebtedness or other monetary
obligation or liability, other than (i) non-recourse indebtedness incurred in
connection with the Transactions or
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similar transactions and (ii) operating expenses incurred in the ordinary course
of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will
be used by the Lessor solely to acquire the Leased Property and to pay the
Construction Agent for certain closing and transaction costs associated
therewith and for the costs of Construction. No portion of the proceeds of the
Loans will be used by the Lessor (i) in connection with, whether directly or
indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation,
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest
in any Person, except for activities similar to its activities conducted on the
date hereof, the Transactions and lease transactions similar to the
Transactions;
(e) it will maintain tangible net worth in an amount no less
than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated
assuming no reduction in the value of any leased property from its original cost
to the Lessor);
(f) it will deliver to the Agent, as soon as available and in
any event within 90 days after the end of each fiscal year, a balance sheet of
the Lessor as of the end of such fiscal year and the related statements of
income, partners' capital and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, together
with copies of its tax returns, all certified by an officer of the general
partner (and if the Lessor ever prepares audited financial statements, it shall
deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to
examine, and make copies from, the Lessor's books and records, and to visit the
offices and properties of the Lessor for the purpose of examining such
materials, and to discuss the Lessor's performance hereunder with any of its, or
its general partner's, officers and employees;
(h) it shall not consent to or suffer or permit any Lien
against the Leased Property, other than as expressly contemplated pursuant to
the Operative Documents;
(i) it shall not consent to or suffer or permit the creation
of any easement or other restriction against the Leased Property other than as
permitted pursuant to Article VI of the Leases; and
(j) it shall promptly discharge each Lessor Lien and shall
indemnify the Lenders and the related Lessee for any diminution in value of any
Leased Property resulting from such Lessor Liens.
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SECTION 6
TRANSFERS BY LESSOR AND LENDERS
SECTION 6.1 Lessor Transfers. The Lessor shall not assign, convey or
otherwise transfer all or any portion of its right, title or interest in, to or
under any Leased Property or any of the Operative Documents without the prior
written consent of the Lenders and Dollar. Any proposed transferee of the Lessor
shall make the representation set forth in Section 4.2(b) to the other parties
hereto.
SECTION 6.2 Lender Transfers.
(a) Any Lender may make, carry or transfer Loans at, to or for
the account of, any of its branch offices or the office of an Affiliate
of such Lender.
(b) Each Lender may assign all or a portion of its interests,
rights and obligations under this Master Agreement and the Loan
Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it and the Notes held by it) to any Eligible
Assignee; provided, however, that (i) the Agent and, except during the
continuance of a Potential Event of Default or Event of Default, Dollar
must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld or delayed) unless such assignment
is to an Affiliate of the assigning Lender, (ii) the amount of the
Commitments of the assigning Lender subject to each assignment
(determined as of the date the assignment and acceptance with respect
to such assignment is delivered to the Agent) shall not be less than an
amount equal to $5,000,000 or greater integral multiplies thereof, and
(iii) the parties to each such assignment shall execute and deliver to
the Agent an Assignment and Acceptance, together with the Note or Notes
subject to such assignment and, unless such assignment is to an
Affiliate of such Lender, a processing and recordation fee of $3,000.
Any such assignment of he loans shall include both the A Loans and the
B Loans, on a pro rata basis. No Lessee shall be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Agent in connection with such assignment. From and after
the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof, the assignee thereunder shall be a party hereto and
to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement and the Loan Agreement. Within five (5) Business Days after
receipt of the notice and the Assignment and Acceptance, Lessor, at the
expense of Lessees, shall execute and deliver to the Agent, in exchange
for the surrendered Note or Notes, a new Note or Notes to the order of
such assignee in a principal amount equal to the applicable Commitments
or Loans assumed by it pursuant to such Assignment and Acceptance and
new Note or Notes to the assigning Lender in the amount of its retained
Commitment or Commitments or amount of its retained Loans. Such new
Note or Notes shall be in aggregate and a principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall
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be dated the date of the surrendered Note or Notes which they replace,
and shall otherwise be in substantially the form attached hereto.
(c) Each Lender may, without the consent of any Lessee, sell
participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Master Agreement and
the Loan Agreement (including all or a portion of its Commitments in
the Loans owing to it and the Notes held by it), provided, however,
that (i) no Lender may sell a participation in its aggregate
Commitments or Loans (after giving effect to any permitted assignment
hereof) in an amount in excess of fifty percent (50%) of such aggregate
Commitments or Loans, provided, however, sales of participations to an
Affiliate of such Lender shall not be included in such calculation;
provided, however, no such maximum amount shall be applicable to any
such participation sold at any time there exists an Event of Default
hereunder, (ii) such Lender's obligations under this Master Agreement
and the Loan Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iv) the participating bank or other
entity shall not be entitled to the benefit (except through its selling
Lender) of the cost protection provisions contained in Section 7.5 of
this Master Agreement, and (v) each Lessee, the Agent and the other
Lenders shall continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations under this Master
Agreement and the other Operative Documents, and such Lender shall
retain the sole right to enforce the obligations of Lessor relating to
the Loans and to approve any amendment, modification or waiver of any
provisions of this Master Agreement and the Loan Agreement. Any Lender
selling a participation hereunder shall provide prompt written notice
to the Agent of the name of such participant.
(d) Any Lender or participant may, in connection with the
assignment or par ticipation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Dollar or
the other Consolidated Companies furnished to such Lender by or on
behalf of Lessee or any other Consolidated Company. With respect to any
disclosure of con fidential, non-public, proprietary information, such
proposed assignee or participant shall agree to use the information
only for the purpose of making any necessary credit judg ments with
respect to this credit facility and not to use the information in any
manner prohibited by any law, including without limitation, the
securities laws of the United States. The proposed participant or
assignee shall agree not to disclose any of such information except as
permitted by this Master Agreement. The proposed participant or
assignee shall further agree to return all documents or other written
material and copies thereof received from any Lender, the Agent or any
Lessee relating to such confidential information unless otherwise
properly disposed of by such entity.
(e) Any Lender may at any time assign all or any portion of
its rights under this Agreement and the Notes issued to it to a Federal
Reserve Bank; provided that no such assignment shall release the Lender
from any of its obligations hereunder.
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(f) If (i) any Taxes referred to in Section 7.5(a) have been
levied or imposed so as to require withholdings and reductions by the
Lessees and payment by the Lessees of additional amounts to any Lender
as a result thereof, (ii) or any Lender shall make demand for payment
of any material additional amounts as compensation for increased costs
pursuant to Section 7.5(d), or (iii) any Lender shall decline to
consent to a modification or waiver of the terms of this Master
Agreement or the other Operative Documents requested by a Lessee, then
and in such event, upon request from Dollar delivered to such Lender
and the Agent, such Lender shall assign, in accordance with the
provisions of Section 6.2(b), all of its rights and obligations under
this Master Agreement and the other Operative Documents to another
Lender or an Eligible Assignee selected by the Lessee and consented to
by the Agent in consideration for the payment by such assignee to the
Lender of the principal of and interest on the outstanding Loans
accrued to the date of such assignment and the assumption of such
Lender's Commitment, together with any and all other amounts owing to
such Lender under any provisions of this Master Agreement or the other
Operative Documents accrued to the date of such assignment.
SECTION 7
INDEMNIFICATION
SECTION 7.1 General Indemnification. Each Lessee, jointly and
severally, agrees, whether or not any of the transactions contemplated hereby
shall be consummated, to assume liability for, and to indemnify, protect,
defend, save and hold harmless each Indemnitee, on an After-Tax Basis, from and
against, any and all Claims that may be imposed on, incurred by or asserted, or
threatened to be asserted, against such Indemnitee, whether or not such
Indemnitee shall also be indemnified as to any such Claim by any other Person
and whether or not such Claim arises or accrues prior to any Closing Date or
after the Lease Termination Date, in any way relating to or arising out of:
(a) any of the Operative Documents or any of the
transactions contemplated thereby, and any amendment, modification or
waiver in respect thereof; or
(b) any Land, any Building or any part thereof or interest
therein, including any Ground Lease, and any IDB Documentation;
(c) the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, ownership, management, possession, operation, rental, lease,
sublease, repossession, maintenance, repair, alteration, modification,
addition, substitution, storage, transfer of title, redelivery, use,
financing, refinancing, disposition, operation, condition, sale
(including, without limitation, any sale pursuant to the related
Lease), return or other disposition of all or any part of any interest
in any Leased Property or the imposition of any Lien, other than a
Lessor Lien (or incurring of any liability to refund or pay over any
amount as a result of any Lien, other than a Lessor Lien) thereon,
including, without limitation: (1) Claims or penalties arising
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from any violation or alleged violation of law or in tort (strict
liability or otherwise), (2) latent or other defects, whether or not
discoverable, (3) any Claim based upon a violation or alleged violation
of the terms of any restriction, easement, condition or covenant or
other matter affecting title to any Leased Property or any part
thereof, (4) the making of any Alterations in violation of any
standards imposed by any insurance policies required to be maintained
by any Lessee pursuant to the related Lease which are in effect at any
time with respect to any Leased Property or any part thereof, (5) any
Claim for patent, trademark or copyright infringement, (6) Claims
arising from any public improvements with respect to any Leased
Property resulting in any charge or special assessments being levied
against any Leased Property or any Claim for utility "tap-in" fees, and
(7) Claims for personal injury or real or personal property damage
occurring, or allegedly occurring, on any Land, Building or Leased
Property;
(d) the offer, issuance, sale or delivery of the Notes by any
Lessee;
(e) the breach or alleged breach by any Lessee of any
representation or warranty made by it or deemed made by it in any
Operative Document or any certificate required to be delivered by any
Operative Document;
(f) the retaining or employment of any broker, finder or
financial advisor by any Lessee to act on its behalf in connection with
this Master Agreement, or the incurring of any fees or commissions to
which the Lessor, the Agent or any Lender might be subjected by virtue
of their entering into the transactions contemplated by this Master
Agreement (other than fees or commissions due to any broker, finder or
financial advisor retained by the Lessor, the Agent or any Lender);
(g) the existence of any Lien on or with respect to any Leased
Property, the Construction, any Basic Rent or Supplemental Rent, title
thereto, or any interest therein, including any Liens which arise out
of the possession, use, occupancy, construction, repair or rebuilding
of any Leased Property or by reason of labor or materials furnished or
claimed to have been furnished to the Construction Agent, any Lessee,
or any of its contractors or agents or by reason of the financing of
any personalty or equipment purchased or leased by any Lessee or
Alterations constructed by any Lessee, except in all cases the Liens
listed as items (a) and (b) in the definition of Permitted Liens;
(h) the transactions contemplated hereby or by any other
Operative Document, in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA and any prohibited transaction described
in Section 4975(c) of the Code; or
(i) any act or omission by any Lessee under any Purchase
Agreement or any other Operative Document, and any breach of any
requirement, condition, restriction or limitation in any Deed, Purchase
Agreement, IDB Documentation or Ground Lease;
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provided, however, the Lessees shall not be required to indemnify any Indemnitee
under this Section 7.1 for any of the following: (1) any Claim to the extent
that such Claim results from the willful misconduct, gross negligence or
misrepresentation of such Indemnitee, (2) any Claim resulting from Lessor Liens
which the Lessor Indemnitee Group is responsible for discharging under the
Operative Documents, or (3) any Claim to the extent attributable to events
occurring after the return of all of the Leased Properties to the Lessor in
accordance with the Leases. It is expressly understood and agreed that the
indemnity provided for herein shall survive the expiration or termination of,
and shall be separate and independent from any other remedy under this Master
Agreement, the Lease or any other Operative Document.
SECTION 7.2 Environmental Indemnity. In addition to and without
limitation of Section 7.1, each Lessee, jointly and severally, agrees to
indemnify, hold harmless and defend each Indemnitee from and against any and all
claims (including without limitation third party claims for personal injury or
real or personal property damage), losses (including but not limited to any loss
of value of any Leased Property), damages, liabilities, fines, penalties,
charges, suits, settlements, demands, administrative and judicial proceedings
(including informal proceedings) and orders, judgments, remedial action,
requirements, enforcement actions of any kind, and all reasonable costs and
expenses actually incurred in connection therewith (including, but not limited
to, reasonable attorneys' and/or paralegals' fees and expenses), including, but
not limited to, all costs incurred in connection with any investigation or
monitoring of site conditions or any clean-up, remedial, removal or restoration
work by any federal, state or local government agency, arising directly or
indirectly, in whole or in part, out of
(i) the presence on or under any Land of any Hazardous
Materials, or any releases or discharges of any Hazardous Materials on,
under, from or onto any Land,
(ii) any activity, including, without limitation,
construction, carried on or undertaken on or off any Land, and whether
by a Lessee or any predecessor in title or any employees, agents,
contractors or subcontractors of any Lessee or any predecessor in
title, or any other Person, in connection with the handling, treatment,
removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Materials that at any time are located or present on or
under or that at any time migrate, flow, percolate, diffuse or in any
way move onto or under any Land,
(iii) loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, cost of corrective action, costs of
financial assurance, fines and penalties and natural resource damages),
or death or injury to any Person, and all expenses associated with the
protection of wildlife, aquatic species, vegetation, flora and fauna,
and any mitigative action required by or under Environmental Laws, in
each case to the extent related to any Leased Property,
(iv) any claim concerning any Leased Property's lack of
compliance with Environmental Laws, or any act or omission causing an
environmental condition on or
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with respect to any Leased Property that requires remediation or would
allow any governmental agency to record a lien or encumbrance on the
land records, or
(v) any residual contamination on or under any Land, or
affecting any natural resources on any Land, and to any contamination
of any property or natural resources arising in connection with the
generation, use, handling, storage, transport or disposal of any such
Hazardous Materials on or from any Leased Property; in each case
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable laws, regulations, codes and
ordinances;
in any case with respect to the matters described in the foregoing clauses (i)
through (v) that arise or occur
(w) prior to or during the Lease Term,
(x) at any time during which any Lessee or any Affiliate
thereof owns any interest in or otherwise occupies or possesses any
Leased Property or any portion thereof, or
(y) during any period after and during the continuance of any
Event of Default;
provided, however, the Lessees shall not be required to indemnify any Indemnitee
under this Section 7.2 for any Claim to the extent that such Claim results from
the willful misconduct or gross negligence of such Indemnitee. It is expressly
understood and agreed that the indemnity provided for herein shall survive the
expiration or termination of and shall be separate and independent from any
other remedy under this Master Agreement, any Lease or any other Operative
Document.
SECTION 7.3 Proceedings in Respect of Claims. With respect to any
amount that a Lessee is requested by an Indemnitee to pay by reason of Section
7.1 or 7.2, such Indemnitee shall, if so requested by a Lessee and prior to any
payment, submit such additional information to such Lessee as such Lessee may
reasonably request and which is in the possession of, or under the control of,
such Indemnitee to substantiate properly the requested payment. In case any
action, suit or proceeding shall be brought against any Indemnitee, such
Indemnitee promptly shall notify Dollar of the commencement thereof (provided
that the failure of such Indemnitee to promptly notify Dollar shall not affect
any Lessee's obligation to indemnify hereunder except to the extent that such
Lessee's ability to contest is Materially prejudiced by such failure), and any
Lessee shall be entitled, at its expense, to participate in, and, to the extent
that such Lessee desires to, assume and control the defense thereof with counsel
reasonably satisfactory to such Indemnitee; provided, however, that such
Indemnitee may pursue a motion to dismiss such Indemnitee from such action, suit
or proceeding with counsel of such Indemnitee's choice at the Lessees' expense;
and provided further that a Lessee may assume and control the defense of such
proceeding only if such Lessee shall have acknowledged in writing its
obligations to fully indemnify such Indemnitee in respect of such action, suit
or proceeding, such Lessee shall pay
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all reasonable costs and expenses related to such action, suit or proceeding as
and when incurred and such Lessee shall keep such Indemnitee fully apprised of
the status of such action suit or proceeding and shall provide such Indemnitee
with all information with respect to such action suit or proceeding as such
Indemnitee shall reasonably request; and, provided further, that no Lessee shall
be entitled to assume and control the defense of any such action, suit or
proceeding if and to the extent that, (A) in the reasonable opinion of such
Indemnitee, (x) such action, suit or proceeding involves any possibility of
imposition of criminal liability or any Material risk of Material civil
liability on such Indemnitee or (y) such action, suit or proceeding will involve
a Material risk of the sale, forfeiture or loss of, or the creation of any Lien
(other than a Permitted Lien) on any Leased Property or any part thereof unless
a Lessee shall have posted a bond or other security satisfactory to the relevant
Indemnitees in respect to such risk or (z) the control of such action, suit or
proceeding would involve an actual or potential conflict of interest, (B) such
proceeding involves Claims not fully indemnified by the Lessees which the
Lessees and the Indemnitee have been unable to sever from the indemnified
claim(s), or (C) an Event of Default has occurred and is continuing. The
Indemnitee may participate in a reasonable manner at its own expense and with
its own counsel in any proceeding conducted by a Lessee in accordance with the
foregoing.
If a Lessee fails to fulfill the conditions to such Lessee's assuming
the defense of any claim after receiving notice thereof on or prior to the date
that is 15 days prior to the date that an answer or response is required, the
Indemnitee may undertake such defense, at the Lessees' expense. No Lessee shall
enter into any settlement or other compromise with respect to any Claim in
excess of $1,000,000 which is entitled to be indemnified under Section 7.1 or
7.2 without the prior written consent of the related Indemnitee, which consent
shall not be unreasonably withheld. Unless an Event of Default shall have
occurred and be continuing, no Indemnitee shall enter into any settlement or
other compromise with respect to any claim which is entitled to be indemnified
under Section 7.1 or 7.2 without the prior written consent of Dollar, which
consent shall not be unreasonably withheld, unless such Indemnitee waives its
right to be indemnified under Section 7.1 or 7.2 with respect to such Claim.
Upon payment in full of any Claim by a Lessee pursuant to Section 7.1
or 7.2 to or on behalf of an Indemnitee, such Lessee, without any further
action, shall be subrogated to any and all claims that such Indemnitee may have
relating thereto (other than claims in respect of insurance policies maintained
by such Indemnitee at its own expense), and such Indemnitee shall execute such
instruments of assignment and conveyance, evidence of claims and payment and
such other documents, instruments and agreements as may be reasonably necessary
to preserve any such claims and otherwise cooperate with such Lessee and give
such further assurances as are reasonably necessary or advisable to enable such
Lessee vigorously to pursue such claims.
Any amount payable to an Indemnitee pursuant to Section 7.1 or 7.2
shall be paid to such Indemnitee promptly upon, but in no event later than 30
days after, receipt of a written demand therefor from such Indemnitee,
accompanied by a written statement describing in reasonable detail the basis for
such indemnity and the computation of the amount so payable.
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If for any reason the indemnification provided for in Section 7.1 or
7.2 is unavailable to an Indemnitee or is insufficient to hold an Indemnitee
harmless, then each Lessee, jointly and severally, agrees to contribute to the
amount paid or payable by such Indemnitee as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnitee on the one hand and by the Lessees
on the other hand but also the relative fault of such Indemnitee as well as any
other relevant equitable considerations. It is expressly understood and agreed
that the right to contribution provided for herein shall survive the expiration
or termination of and shall be separate and independent from any other remedy
under this Master Agreement, any Lease or any other Operative Document.
SECTION 7.4 General Tax Indemnity. (a) Tax Indemnity. Except as
otherwise provided in this Section 7.4, each Lessee, jointly and severally,
shall pay on an After-Tax Basis, and on written demand shall indemnify and hold
each Tax Indemnitee harmless from and against, any and all fees (including,
without limitation, documentation, recording, license and registration fees),
taxes (including, without limitation, income, gross receipts, sales, rental,
use, turnover, value-added, property, excise and stamp taxes), levies, imposts,
duties, charges, assessments or withholdings of any nature whatsoever, together
with any penalties, fines or interest thereon or additions thereto (any of the
foregoing being referred to herein as "Taxes" and individually as a "Tax" (for
the purposes of this Section 7.4, the definition of "Taxes" includes amounts
imposed on, incurred by, or asserted against each Tax Indemnitee as the result
of any prohibited transaction, within the meaning of Section 406 or 407 of ERISA
or Section 4975(c) of the Code, arising out of the transactions contemplated
hereby or by any other Operative Document)) imposed on or with respect to any
Tax Indemnitee, any Lessee, any Leased Property or any portion thereof or any
Land, or any sublessee or user thereof, by the United States or by any state or
local government or other taxing authority in the United States in connection
with or in any way relating to (i) the acquisition, financing, mortgaging,
construction, preparation, installation, inspection, delivery, non-delivery,
acceptance, rejection, purchase, ownership, possession, rental, lease, sublease,
maintenance, repair, storage, transfer of title, redelivery, use, operation,
condition, sale, return or other application or disposition of all or any part
of any Leased Property or the imposition of any Lien (or incurrence of any
liability to refund or pay over any amount as a result of any Lien) thereon,
(ii) Basic Rent or Supplemental Rent or the receipts or earnings arising from or
received with respect to any Leased Property or any part thereof, or any
interest therein or any applications or dispositions thereof, (iii) any other
amount paid or payable pursuant to the Notes or any other Operative Documents,
(iv) any Leased Property, any Land or any part thereof or any interest therein
(including, without limitation, all assessments payable in respect thereof,
including, without limitation, all assessments noted on the related Title
Policy), (v) all or any of the Operative Documents, any other documents
contemplated thereby, any amendments and supplements thereto, and (vi) otherwise
with respect to or in connection with the transactions contemplated by the
Operative Documents.
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(b) Exclusions from General Tax Indemnity. Section 7.4(a) shall
not apply to:
(i) Taxes on, based on, or measured by or with respect to net
income of the Lessor, the Agent and the Lenders (including, without
limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by
items of tax preference or alternative minimum Taxes) other than (A) any
such Taxes that are, or are in the nature of, sales, use, license, rental
or property Taxes, and (B) withholding Taxes imposed by the United States
or any state in which Leased Property is located (i) on payments with
respect to the Notes, to the extent imposed by reason of a change in
Applicable Law occurring after the date on which the holder of such Note
became the holder of such Note or (ii) on Rent, to the extent the net
payment of Rent after deduction of such withholding Taxes would be less
than amounts currently payable with respect to the Funded Amounts;
(ii) Taxes on, based on, or in the nature of or measured by
Taxes on doing business, business privilege, franchise, capital, capital
stock, net worth, or mercantile license or similar taxes other than (A)
any increase in such Taxes imposed on such Tax Indemnitee by any state in
which Leased Property is located, net of any decrease in such taxes
realized by such Tax Indemnitee, to the extent that such tax increase
would not have occurred if on each Funding Date the Lessor and the
Lenders had advanced funds to the related Lessee or the Construction
Agent in the form of loans secured by the Leased Property in an amount
equal to the Funded Amounts funded on such Funding Date, with debt
service for such loans equal to the Basic Rent payable on each Payment
Date and a principal balance at the maturity of such loans in a total
amount equal to the Funded Amounts at the end of the Lease Term, or (B)
any Taxes that are or are in the nature of sales, use, rental, license or
property Taxes relating to any Leased Property;
(iii) Taxes that are based on, or measured by, the fees or other
compensation received by a Person acting as Agent (in its individual
capacities) or any Affiliate of any thereof for acting as trustee under
the Loan Agreement;
(iv) Taxes that result from any act, event or omission, or are
attributable to any period of time, that occurs after the earliest of (A)
the expiration of the Lease Term with respect to any Leased Property and,
if such Leased Property is required to be returned to the Lessor in
accordance with the related Lease, such return and (B) the discharge in
full of the related Lessee's obligations to pay the Lease Balance, or any
amount determined by reference thereto, with respect to any Leased
Property and all other amounts due under the related Lease, unless such
Taxes relate to acts, events or matters occurring prior to the earliest
of such times or are imposed on or with respect to any payments due under
the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any
voluntary sale, assignment, transfer or other disposition or bankruptcy
by such Tax Indemnitee or any related Tax Indemnitee of any interest in
any Leased Property or any part thereof, or any interest therein or any
interest or obligation arising under the Operative Documents,
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or from any sale, assignment, transfer or other disposition of any
interest in such Tax Indemnitee or any related Tax Indemnitee, it being
understood that each of the following shall not be considered a
voluntary sale: (A) any substitution, replacement or removal of any of
the Leased Property by a Lessee, (B) any sale or transfer resulting
from the exercise by a Lessee of any termination option, any purchase
option or sale option, (C) any sale or transfer while an Event of
Default shall have occurred and be continuing under a Lease, and (D)
any sale or transfer resulting from the Lessor's exercise of remedies
under any Lease;
(vi) any Tax which is being contested in accordance with the
provisions of Section 7.4(c), during the pendency of such contest;
(vii) any Tax that is imposed on a Tax Indemnitee as a result
of such Tax Indemnitee's gross negligence or willful misconduct (other
than gross negligence or willful misconduct imputed to such Tax
Indemnitee solely by reason of its interest in any Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging,
with respect to any Leased Property, in transactions other than those
permitted by the Operative Documents;
(ix) to the extent any interest, penalties or additions to
tax result in whole or in part from the failure of a Tax Indemnitee to
file a return or pay a Tax that it is required to file or pay in a proper
and timely manner, unless such failure (A) results from the transactions
contemplated by the Operative Documents in circumstances where a Lessee
did not give timely notice to such Tax Indemnitee (and such Tax
Indemnitee otherwise had no actual knowledge) of such filing or payment
requirement that would have permitted a proper and timely filing of such
return or payment of such Tax, as the case may be, or (B) results from
the failure of a Lessee to supply information necessary for the proper
and timely filing of such return or payment of such Tax, as the case may
be, that was not in the possession of such Tax Indemnitee; and
(x) any Tax that results from the breach by the Lessor of
its representation and warranty made in Section 4.2(b) or the breach of
any Lender of its representation and warranty made in Section 4.3(b).
(c) Contests. If any claim shall be made against any Tax
Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee
(including a written notice of such proceeding) for any Taxes as to which the
Lessee may have an indemnity obligation pursuant to Section 7.4, or if any Tax
Indemnitee shall determine that any Taxes as to which the Lessees may have an
indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee
shall promptly notify Dollar. A Lessee shall be entitled, at its expense, to
participate in, and, to the extent that such Lessee desires to, assume and
control the defense thereof; provided, however, that such Lessee shall have
acknowledged in writing its obligation to fully indemnify
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such Tax Indemnitee in respect of such action if requested to do so by such
Lessee, suit or proceeding if the contest is unsuccessful; and, provided
further, that no Lessee shall be entitled to assume and control the defense of
any such action, suit or proceeding (but the Tax Indemnitee shall then contest,
at the sole cost and expense of the Lessee, on behalf of the related Lessee with
representatives reasonably satisfactory to such Lessee) if and to the extent
that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or
proceeding (x) involves any meaningful risk of imposition of criminal liability
or any Material risk of Material civil liability on such Tax Indemnitee or (y)
will involve a Material risk of the sale, forfeiture or loss of, or the creation
of any Lien (other than a Permitted Lien) on any Leased Property or any part
thereof unless the Lessees shall have posted a bond or other security
satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such
proceeding involves Claims not fully indemnified by the Lessees which the
Lessees and the Tax Indemnitee have been unable to sever from the indemnified
claim(s), (C) an Event of Default has occurred and is continuing, (D) such
action, suit or proceeding involves matters which extend beyond or are unrelated
to the Transaction and if determined adversely could be Materially detrimental
to the interests of such Tax Indemnitee notwithstanding indemnification by the
Lessees or (E) such action, suit or proceeding involves the federal or any state
income tax liability of the Tax Indemnitee. With respect to any contests
controlled by a Tax Indemnitee, (i) if such contest relates to the federal or
any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall
be required to conduct such contest only if the Lessees shall have provided to
such Tax Indemnitee an opinion of independent tax counsel selected by the Tax
Indemnitee and reasonably satisfactory to the Lessees stating that a reasonable
basis exists to contest such claim or (ii) in the case of an appeal of an
adverse determination of any contest relating to any Taxes, an opinion of such
counsel to the effect that such appeal is more likely than not to be successful,
provided, however, such Tax Indemnitee shall in no event be required to appeal
an adverse determination to the United States Supreme Court. The Tax Indemnitee
may participate in a reasonable manner at its own expense and with its own
counsel in any proceeding conducted by a Lessee in accordance with the
foregoing.
Each Tax Indemnitee shall at the Lessees' expense supply the related
Lessee with such information and documents in such Tax Indemnitee's possession
reasonably requested by such Lessee as are necessary or advisable for such
Lessee to participate in any action, suit or proceeding to the extent permitted
by this Section 7.4. Unless an Event of Default shall have occurred and be
continuing, no Tax Indemnitee shall enter into any settlement or other
compromise with respect to any Claim which is entitled to be indemnified under
this Section 7.4 without the prior written consent of Dollar, which consent
shall not be unreasonably withheld, unless such Tax Indemnitee waives its right
to be indemnified under this Section 7.4 with respect to such Claim.
Notwithstanding anything contained herein to the contrary, (a) a Tax
Indemnitee will not be required to contest (and no Lessee shall be permitted to
contest) a claim with respect to the imposition of any Tax if such Tax
Indemnitee shall waive its right to indemnification under this Section 7.4 with
respect to such claim (and any related claim with respect to other taxable years
the contest of which is precluded as a result of such waiver) and (b) no Tax
Indemnitee shall be required to contest any claim if the subject matter thereof
shall be of a continuing nature and
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shall have previously been decided adversely, unless there has been a change in
law which in the opinion of Tax Indemnitee's counsel creates substantial
authority for the success of such contest. Each Tax Indemnitee and each Lessee
shall consult in good faith with each other regarding the conduct of such
contest controlled by either.
(d) Reimbursement for Tax Savings. If (x) a Tax Indemnitee
shall obtain a credit or refund of any Taxes paid by a Lessee pursuant to this
Section 7.4 or (y) by reason of the incurrence or imposition of any Tax for
which a Tax Indemnitee is indemnified hereunder or any payment made to or for
the account of such Tax Indemnitee by a Lessee pursuant to this Section 7.4,
such Tax Indemnitee at any time realizes a reduction in any Taxes for which the
Lessees are not required to indemnify such Tax Indemnitee pursuant to this
Section 7.4, which reduction in Taxes was not taken into account in computing
such payment by a Lessee to or for the account of such Tax Indemnitee, then such
Tax Indemnitee shall promptly pay to such Lessee (xx) the amount of such credit
or refund, together with the amount of any interest received by such Tax
Indemnitee on account of such credit or refund or (yy) an amount equal to such
reduction in Taxes, as the case may be; provided that no such payment shall be
made so long as an Event of Default shall have occurred and be continuing and,
provided, further, that the amount payable to a Lessee by any Tax Indemnitee
pursuant to this Section 7.4(d) shall not at any time exceed the aggregate
amount of all indemnity payments made by such Lessee under this Section 7.4 to
such Tax Indemnitee with respect to the Taxes which gave rise to the credit or
refund or with respect to the Tax which gave rise to the reduction in Taxes less
the amount of all prior payments made to such Lessee by such Tax Indemnitee
under this Section 7.4(d). Each Tax Indemnitee agrees to act in good faith to
claim such refunds and other available Tax benefits, and take such other actions
as may be reasonable to minimize any payment due from the Lessees pursuant to
this Section 7.4. The disallowance or reduction of any credit, refund or other
tax savings with respect to which a Tax Indemnitee has made a payment to a
Lessee under this Section 7.4(d) shall be treated as a Tax for which the Lessees
are obligated to indemnify such Tax Indemnitee hereunder without regard to
Section 7.4(b) hereof.
(e) Payments. Any Tax indemnifiable under this Section 7.4
shall be paid by the Lessees directly when due to the applicable taxing
authority if direct payment is practicable and permitted. If direct payment to
the applicable taxing authority is not permitted or is otherwise not made, any
amount payable to a Tax Indemnitee pursuant to Section 7.4 shall be paid within
thirty (30) days after receipt of a written demand therefor from such Tax
Indemnitee accompanied by a written statement describing in reasonable detail
the amount so payable, but not before the date that the relevant Taxes are due.
Any payments made pursuant to Section 7.4 shall be made to the Tax Indemnitee
entitled thereto or a Lessee, as the case may be, in immediately available funds
at such bank or to such account as specified by the payee in written directions
to the payor, or, if no such direction shall have been given, by check of the
payor payable to the order of the payee by certified mail, postage prepaid at
its address as set forth in this Master Agreement. Upon the request of any Tax
Indemnitee with respect to a Tax that a Lessee is required to pay, such Lessee
shall furnish to such Tax Indemnitee the original or a certified copy of a
receipt for the Lessee's payment of such Tax or such other evidence of payment
as is reasonably acceptable to such Tax Indemnitee.
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(f) Reports. If any Lessee knows of any report, return or
statement required to be filed with respect to any Taxes that are subject to
indemnification under this Section 7.4, such Lessee shall, if such Lessee is
permitted by Applicable Law, timely file such report, return or statement (and,
to the extent permitted by law, show ownership of the applicable Leased Property
in such Lessee); provided, however, that if such Lessee is not permitted by
Applicable Law or does not have access to the information required to file any
such report, return or statement, such Lessee will promptly so notify the
appropriate Tax Indemnitee, in which case Tax Indemnitee will file such report.
In any case in which the Tax Indemnitee will file any such report, return or
statement, a Lessee shall, upon written request of such Tax Indemnitee, prepare
such report, return or statement for filing by such Tax Indemnitee or, if such
Tax Indemnitee so requests, provide such Tax Indemnitee with such information as
is reasonably available to such Lessee.
(g) Verification. At a Lessee's request, the amount of any
indemnity payment by the Lessees or any payment by a Tax Indemnitee to a Lessee
pursuant to this Section 7.4 shall be verified and certified by an independent
public accounting firm selected by Dollar and reasonably acceptable to the Tax
Indemnitee. Unless such verification shall disclose an error in the Lessees'
favor of 5% or more of the related indemnity payment, the costs of such
verification shall be borne by the Lessees. In no event shall the Lessee have
the right to review the Tax Indemnitee's tax returns or receive any other
confidential information from the Tax Indemnitee in connection with such
verification. The Tax Indemnitee agrees to cooperate with the independent public
accounting firm performing the verification and to supply such firm with all
information reasonably necessary to permit it to accomplish such verification,
provided that the information provided to such firm by such Tax Indemnitee shall
be for its confidential use. The parties agree that the sole responsibility of
the independent public accounting firm shall be to verify the amount of a
payment pursuant to this Master Agreement and that matters of interpretation of
this Master Agreement are not within the scope of the independent accounting
firm's responsibilities.
SECTION 7.5 Increased Costs, etc.
(a) Taxes.
(i) Except as otherwise specifically provided herein,
all payments under this Master Agreement and the other
Operative Documents, other than the payments specified in
clause (ii)(c) below, shall be made without defense, set-off,
or counterclaim.
(ii) (a) All such payments shall be made free and
clear of and without deduction or withholding
for any Taxes in respect of this Master
Agreement, the Notes or other Operative
Documents, or any payments of principal,
interest, fees or other amounts payable hereun
der or thereunder (but excluding, except as
provided in paragraph (iii) hereof, in the case
of each Lender, taxes imposed on or measured by
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its net income, and franchise taxes and branch
profit taxes imposed on it (A) by the
jurisdiction under the laws of which such Lender
is organized or any political subdivision
thereof, and in the case of each Lender, taxes
imposed on or measured by its net income, and
franchise taxes and branch profit taxes imposed
on it, by the jurisdiction of such Lender's
appropriate Lending Office or any political
subdivision thereof, and (B) by a jurisdiction
in which any payments are to be made by any
Lessee under the Operative Documents, other than
the United States of America, or any political
subdivision thereof, and that would not have
been imposed but for the existence of a
connection between such Lender and the
jurisdiction imposing such taxes (other than a
connection arising as a result of this Agreement
or the transactions contemplated by this
Agreement), except in the case of taxes
described in this clause (B), to the extent such
taxes are imposed as a result of a change in the
law or regulations of any jurisdiction or any
applicable treaty or regulations or in the
official interpretation of any such law, treaty
or regulations by any government authority
charged with the interpretation or
administration thereof after the date of this
Master Agreement). If any such Taxes are so
levied or imposed, the Lessees, jointly and
severally agree (A) to pay the full amount of
such Taxes, and such additional amounts as may
be necessary so that every net payment of all
amounts due hereunder and under the Notes and
other Operative Documents, after withholding or
deduction for or on account of any such Taxes
(including additional sums payable under this
Section 7.5(a)), will not be less than the full
amount provided for herein had no such deduction
or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full
amount deducted to the relevant authority in
accordance with applicable law. Dollar will
furnish to the Agent and each Lender, within 30
days after the date the payment of any Taxes is
due pursuant to applicable law, certified copies
of tax receipts evidencing such payment by a
Lessee. The Lessees, jointly and severally, will
indemnify and hold harmless the Agent and each
Lender and reimburse the Agent and each Lender
upon written request for the amount of any such
Taxes so levied or imposed and paid by the Agent
or Lender and any liability (including
penalties, interest and expenses) arising
therefrom or with respect thereto, whether or
not such Taxes were correctly or illegally
asserted. A certificate as to the amount of such
payment by such Lender or the Agent, absent
manifest error, shall be final, conclusive and
binding for all purposes.
(b) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any
State thereof (including the District of
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Columbia) agrees to furnish to Dollar and the Agent, prior to
the time it becomes a Lender hereunder, two copies of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or any successor forms thereto
(wherein such Lender claims entitlement to complete exemption
from U.S. Federal withholding tax on Rent paid by the Lessees)
and to provide to Dollar and the Agent a new Form 4224 or Form
1001 or any successor forms thereto if any previously
delivered form is found to be incomplete or incorrect in any
Material respect or upon the obsolescence of any previously
delivered form; provided, however, that no Lender shall be
required to furnish a form under this paragraph (ii) after the
date that it becomes a Lender hereunder if it is not entitled
to claim an exemption from withholding under applicable law.
(c) The Lessees, jointly and severally, shall also reimburse
the Agent and each Lender, upon written request, for any Taxes
imposed (including, without limitation, Taxes imposed on the
overall net income of the Agent or Lender or its applicable
Lending Office pursuant to the laws of the jurisdiction in
which the principal executive office or the applicable Lending
Office of the Agent or Lender is located) as the Agent or
Lender shall determine are payable by the Agent or Lender in
respect of amounts paid by or on behalf of a Lessee to or on
behalf of the Agent or Lender pursuant to paragraph (i)
hereof.
(d) In addition to the documents to be furnished pursuant to
Section 7.5(a)(ii), each Lender shall, promptly upon the
reasonable written request of Dollar to that effect, deliver
to Dollar such other accurate and complete forms or similar
documentation as such Lender is legally able to provide and as
may be required from time to time by any applicable law,
treaty, rule or regulation or any jurisdiction in order to
establish such Lender's tax status for withholding purposes or
as may otherwise be appropriate to eliminate or minimize any
Taxes on payments under this Agreement or the Notes.
(e) No Lessee shall be required to pay any amounts pursuant to
Section 7.5(a)(iii) to any Lender for the account of any
Lending Officer of such Lender in respect of any United States
withholding taxes payable hereunder (and the Lessees, if
required by law to do so, shall be entitled to withhold such
amounts and pays such amounts to the United States Government)
if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender to comply with
its obligations under Section 7.5(a)(ii)(b), and such Lender
shall not be entitled to an exemption from deduction or
withholding of United Stated Federal income tax in respect of
the payment of such sum by the Lessees hereunder for the
account of such Lending Office for, in each case, any reason
other than a change in United States law or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force of
law) after the date such Lender became a Lender hereunder.
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(f) Within sixty (60) days of the written request of Dollar,
each Lender shall execute and deliver such certificates, forms
or other documents, which can be rea sonably furnished
consistent with the facts and which are reasonably necessary
to assist in applying for refunds of Taxes remitted hereunder.
(g) To the extent that the payment of any Lender's Taxes by
any Lessee gives rise from time to time to a Tax Benefit (as
hereinafter defined) to such Lender in any jurisdiction other
than the jurisdiction which imposed such Taxes, such Lender
shall pay to Dollar the amount of each such Tax Benefit so
recognized or received. The amount of each Tax Benefit and,
therefore, payment to Dollar will be determined from time to
time by the relevant Lender in its sole discretion, which
determination shall be binding and conclusive on all parties
hereto. Each such payment will be due and payable by such
Lender to Dollar within a reasonable time after the filing of
the income tax return in which such Tax Benefit is recognized
or, in the case of any tax refund, after the refund is
received; provided, however if at any time thereafter such
Lender is required to rescind such Tax Benefit or such Tax
Benefit is otherwise disallowed or nullified, the Lessees,
jointly and severally shall promptly, after notice thereof
from such Lender, repay to Lender the amount of such Tax
Benefit previously paid to the Borrower and rescinded,
disallowed or nullified. For purposed of this section, "Tax
Benefit" shall mean the amount by which any Lender's income
tax liability for the taxable period in question is reduced
below what would have been payable had the Borrower not been
required to pay the Lender's Taxes. In case of any dispute
with respect to the amount of any payment no Lessee shall have
any right to any offset or withholding of payments with
respect to future payments due to any Lender under the
Operative Documents.
(b) Interest Rate Not Ascertainable, etc. In the event that
the Agent shall have determined (which determination shall be made in good faith
and, absent manifest error, shall be final, conclusive and binding upon all
parties) that on any date for determining the Adjusted LIBO Rate for any Rent
Period, by reason of any changes arising after the date of this Master Agreement
affecting the London interbank market, or the Agent's position in such market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Adjusted LIBO Rate, then,
and in any such event, the Agent shall forthwith give notice (by telephone
confirmed in writing) to Dollar and to the Lenders, of such determination and a
summary of the basis for such determination. Until the Agent notifies Dollar
that the circumstances giving rise to the suspension described herein no longer
exist, the obligations of the Lenders to make or permit portions of the Fundings
to remain outstanding past the last day of the then current Rent Periods as
LIBOR Advances shall be suspended, and such affected Advances shall bear the
same interest as Base Rate Advances.
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(c) Illegality.
(i) In the event that any Lender shall have
determined (which determination shall be made in good faith
and, absent manifest error, shall be final, conclusive and
binding upon all parties) at any time that the making or
continuance of any LIBOR Advance has become unlawful by
compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order
(whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone
confirmed in writing) to Dollar and to the Agent of such
determination and a summary of the basis for such
determination (which notice the Agent shall promptly transmit
to the other Lenders).
(ii) Upon the giving of the notice to Dollar referred
to in subsection (i) above, (i) each Lessee right to request
and such Lender's obligation to make LIBOR Advances shall be
immediately suspended, and such Lender shall make an Advance
as part of the requested Funding of LIBOR Advances as a Base
Rate Advance, which Base Rate Advance, as the case may be,
shall, for all other purposes, be considered part of such
Funding, and (ii) if the affected LIBOR Advance or Advances
are then outstanding, each Lessee shall immediately, or if
subject to applicable law, no later than the date permitted by
applicable law, upon at least one Business Day's written
notice to the Agent and the affected Lender, convert each such
Advance into a Base Rate Advance or Advances, provided that if
more than one Lender is affected at any time, then all
affected Lenders must be treated the same pursuant to this
Section 7.5(c)(ii).
(d) Increased Costs.
(i) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation,
any change by way of imposition or increase of reserve
requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or
request from any central bank or other governmental authority
or quasi-governmental authority exercising control over banks
or financial institutions generally (whether or not having the
force of law):
(a) any Lender (or its applicable Lending
Office) shall be subject to any tax, duty or other
charge with respect to its LIBOR Advances, or its
obligation to make such Advances, or the basis of
taxation of payments to any Lender of the principal
of or interest on its LIBOR Advances or its
obligation to make LIBOR Advances shall have changed
(except for changes in the tax on the overall net
income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such
Lender's principal executive office or applicable
Lending Office is located); or
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(b) any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar
requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender's
applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its LIBOR
Advances or its obligation to make LIBOR Advances
shall be imposed on any Lender or its applicable
Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Advances (except to
the extent already included in the determination of the applicable Adjusted LIBO
Rate for LIBOR Advances) or its obligation to make LIBOR Advances, or there
shall be a reduction in the amount received or receivable by such Lender or its
applicable Lending Office, then the Lessees, jointly and severally, shall from
time to time, upon written notice from and demand by such Lender to Dollar (with
a copy of such notice and demand to the Agent), pay to the Agent for the account
of such Lender within ten (10) Business Days after the date of such notice and
demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost, submitted
to Dollar and the Agent by such Lender in good faith and accompanied by a
statement prepared by such Lender describing in reasonable detail the basis for
and calculation of such increased cost, shall, except for manifest error, be
final conclusive and binding for all purposes.
(ii) If any Lender shall advise the Agent that at any time,
because of the cir cumstances described in clauses (x) or (y) in
Section 7.5(c)(i) or any other circumstances beyond such Lender's
reasonable control arising after the date of this Agreement affecting
such Lender or the London interbank market or such Lender's position in
such market, the Adjusted LIBO Rate as determined by the Agent will not
adequately and fairly reflect the cost to such Lender of funding its
LIBOR Advances then, and in any such event:
(a) the Agent shall forthwith give notice (by
telephone confirmed in writing) to Dollar and to the other
Lenders of such advice;
(b) each Lessee's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Rent Periods
as LIBOR Advances shall be immediately suspended; and
(c) such Lender shall make a Loan as part of the
requested Funding of LIBOR Advances as a Base Rate Advance,
which such Base Rate Advance shall, for all other purposes, be
considered part of such Funding.
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(e) Lending Offices.
(i) Each Lender agrees that, if requested by Dollar, it will
use reasonable efforts (subject to overall policy considerations of
such Lender) to designate an alternate Lending Office with respect to
any of its LIBOR Advances affected by the matters or circumstances
described in Section 7.5(a), (b), (c) or (d) to reduce the liability of
the Lessees or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as reasonably
determined by such Lender, which determination shall be conclusive and
binding on all parties hereto. Nothing in this Section 7.5(e) shall
affect or postpone any of the obligations of any Lessee or any right of
any Lessee any Lender provided hereunder or under the other Operative
Documents.
(ii) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State
thereof (including the District of Columbia) is sues a public
announcement with respect to the closing of its Lending Offices in the
United States such that any withholdings or deductions and additional
payments with respect to Taxes may be required to be made by a Lessee
thereafter pursuant to Section 7.5(a)(ii), such Lender shall use
reasonable efforts to furnish Borrower notice thereof as soon as
practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge any Lessee
from its obligations to such Lender pursuant to Section 7.5(a) or
otherwise result in any liability of such Lender.
(f) Funding Losses. The Lessees, jointly and severally, shall
compensate each Lender, upon its written request to Dollar (which
request shall set forth the basis for requesting such amounts in
reasonable detail and which request shall be made in good faith and,
absent manifest error, shall be final, conclusive and binding upon all
of the parties hereto), for all actual losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its LIBOR Advances to
the extent not recovered by such Lender in connection with the
re-employment of such funds but excluding loss of anticipated profits),
which the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a funding of, or conversion to or continuation
of, LIBOR Advances does not occur on the date specified therefor in a
Funding Request or Payment Date Notice (whether or not withdrawn), (ii)
if any repayment (including mandatory prepayments and any conversions)
of any LIBOR Advances occurs on a date which is not the last day of a
Rent Period applicable thereto, (iii), if, for any reason, any Lessee
defaults in its obligation to pay Basic Rent when required by the terms
of any Lease or (iv) if any Lender is required to make an assignment
pursuant to Section 6.2(f)..
(g) Assumptions Concerning Funding of LIBOR Advances.
Calculation of all amounts payable to a Lender under this Section 7.5 shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the amount of the
LIBOR Advances and having a maturity comparable to the relevant Rent Period and
through the transfer of such LIBOR Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however that each
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Lender may fund each of its LIBOR Advances in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable under
this Section 7.5.
(h) Capital Adequacy. Without limiting any other provision of
this Master Agreement, in the event that any Lender shall have determined that
any law, treaty, governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not currently in effect or fully
applicable as of the Initial Closing Date, or any change therein or in the
interpretation or application thereof after the Initial Closing Date, or
compliance by such Lender with any request or directive regarding capital
adequacy not currently in effect or fully applicable as of the Initial Closing
Date (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) from a central bank or governmental
authority or body having jurisdiction, does or shall have the effect of reducing
the rate of return on such Lender's capital as a consequence of its obligations
hereunder to a level below that which such Lender could have achieved but for
such law, treaty, rule, regulation, guideline or order, or such change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be Material, then within
ten (10) Business Days after written notice and demand by such Lender (with
copies thereof to the Agent), the Lessees, jointly and severally, shall from
time to time pay to such Lender additional amounts sufficient to compensate such
Lender for such reduction (but, in the case of outstanding Base Rate Advances,
without duplication of any amounts already recovered by such Lender by reason of
an adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 7.5(h) (which certificate shall set forth the basis
for requesting such amounts in reasonable detail), submitted to Dollar by any
Lender in good faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
(i) Limitation on Certain Payment Obligations.
(a) Each Lender or the Agent shall make written
demand on Dollar for indemnification or compensation pursuant
to Section 7.5(a)(ii) no later than six months after the
earlier of (i) on the date on which Lender or the Agent makes
payment of any such Taxes and (ii) the date on which the
relevant taxing authority or other governmental authority
makes written demand upon such Lender or Agent for the payment
of such Taxes.
(b) Each Lender or Agent shall make written demand on
Dollar for in demnification or compensation pursuant to
Section 7.5(e) no later than six months after the event giving
rise to the claim for indemnification or compensation occurs.
(c) Each Lender or the Agent shall make written
demand on Dollar for identification or compensation pursuant
to Section 7.5(d) or Section 7.5(g) no later than six months
after such Lender or Agent receives actual notice or obtains
actual knowledge of the promulgation of a law, rule, order,
interpretation or occurrence of another event giving rise to a
claim pursuant to such provisions.
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(d) In the event that the Lenders or Agent fail to
give Dollar notice within the time limitations set forth
above, no Lessee shall have any obligation to pay amounts with
respect to such claims accrued prior to six months preceding
any written demand therefor.
SECTION 7.6 End of Term Indemnity. In the event that at the end of the
Lease Term for a Leased Property: (i) the related Lessee elects the option set
forth in Section 14.6 of the related Lease, and (ii) after the Lessor receives
the sales proceeds from such Leased Property under Section 14.6 or 14.7 of such
Lease, together with such Lessee's payment of the Recourse Deficiency Amount,
the Lessor shall not have received the entire Lease Balance, then, within 90
days after the end of the Lease Term, the Lessor or the Agent may obtain, at the
Lessees' sole cost and expense, a report from the Appraiser (or, if the
Appraiser is not available, another appraiser reasonably satisfactory to the
Lessor or the Agent, as the case may be, and approved by Dollar, such approval
not to be unreasonably withheld) in form and substance satisfactory to the
Lessor and the Agent (the "Report") to establish the reason for any decline in
value of such Leased Property from the Lease Balance. The related Lessee or
Lessees shall promptly reimburse the Lessor for the amount equal to such decline
in value to the extent that the Report indicates that such decline was due to
(w) extraordinary use, failure to maintain, to repair, to
restore, to rebuild or to replace, failure to comply with all
Applicable Laws, failure to use, workmanship, method of installation or
removal or maintenance, repair, rebuilding or replacement, or any other
cause or condition within the power of the related Lessee to control or
effect resulting in the Building failing to be a store, office building
or warehouse, as the case may be, of the type and quality contemplated
by the Appraisal (excepting in each case ordinary wear and tear), or
(x) any Alteration made to, or any rebuilding of, the Leased
Property or any part thereof by the related Lessee, or
(y) any restoration or rebuilding carried out by the related
Lessee or any condemnation of any portion of the Leased Property
pursuant to Article X of the related Lease, or
(z) any use of such Leased Property or any part thereof by the
related Lessee other than as permitted by the related Lease, or any act
or omission constituting a breach of any requirement, condition,
restriction or limitation set forth in the related Deed or the related
Purchase Agreement.
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SECTION 8
MISCELLANEOUS
SECTION 8.1 Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery and the termination or expiration of
this Master Agreement and any of the Operative Documents, the transfer of any
Land to the Lessor as provided herein (and shall not be merged into any Deed),
any disposition of any interest of the Lessor in any Leased Property, the
purchase and sale of the Notes, payment therefor and any disposition thereof and
shall be and continue in effect notwithstanding any investigation made by any
party hereto or to any of the other Operative Documents and the fact that any
such party may waive compliance with any of the other terms, provisions or
conditions of any of the Operative Documents.
SECTION 8.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be addressed to such parties at the addresses therefor as set forth
in Schedule 8.2, or such other address as any such party shall specify to the
other parties hereto, and shall be deemed to have been given (i) the Business
Day after being sent, if sent by overnight courier service; (ii) the Business
Day received, if sent by messenger; (iii) the day sent, if sent by facsimile and
confirmed electronically or otherwise during business hours of a Business Day
(or on the next Business Day if otherwise sent by facsimile and confirmed
electronically or otherwise); or (iv) three Business Days after being sent, if
sent by registered or certified mail, postage prepaid.
SECTION 8.3 Counterparts. This Master Agreement may be executed by the
parties hereto in separate counterparts (including by facsimile), each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 8.4 Amendments. No Operative Document nor any of the terms
thereof may be terminated, amended, supplemented, waived or modified with
respect to the Lessees or any Funding Party, except (a) in the case of a
termination, amendment, supplement, waiver or modification to be binding on the
Lessees, with the written agreement or consent of Dollar, and (b) in the case of
a termination, amendment, supplement, waiver or modification to be binding on
the Funding Parties, with the written agreement or consent of the Required
Funding Parties; provided, however, that
(x) notwithstanding the foregoing provisions of this Section
8.4, the consent of each Funding Party affected thereby shall be required for
any amendment, modification or waiver directly:
(i) modifying any of the provisions of this Section 8.4,
changing the definition of "Required Funding Parties" or "Required
Lenders", or increasing the Commitment of such Funding Party;
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(ii) amending, modifying, waiving or supplementing any of the
provisions of Section 3 of the Loan Agreement or the representations of
such Funding Party in Section 4.2 or 4.3 or the covenants of such
Funding Party in Section 6 of this Master Agreement;
(iii) reducing any amount payable to such Funding Party under
the Operative Documents or extending the time for payment of any such
amount, including, without limitation, any Rent, any Funded Amount, any
fees, any indemnity, the Leased Property Balance, the Lease Balance,
any Funding Party Balance, Recourse Deficiency Amount, interest or
Yield; or
(iv) consenting to any assignment of any Lease or the
extension of the Lease Term, releasing any of the collateral assigned
to the Agent and the Lenders pursuant to any Mortgage and any
Assignment of Lease and Rents (but excluding a release of any rights
that the Lenders may have in any Leased Property, or the proceeds
thereof as contemplated in the definition of "Release Date"), releasing
any Lessee from its obligations in respect of the payments of Rent and
the Lease Balance, releasing Dollar from its obligations under the
Guaranty Agreement or the other Operative Documents or changing the
absolute and unconditional character of any such obligation; and
(y) no such termination, amendment, supplement, waiver or
modification shall, without the written agreement or consent of the Lessor, the
Agent and the Lenders, be made to any Lease or any Security Agreement and
Assignment; and
(z) subject to the foregoing clauses (x) and (y), so long as
no Event of Default has occurred and is continuing, the Lessor, the Agent and
the Lenders may not amend, supplement, waive or modify any terms of the Loan
Agreement, the Notes, the Mortgages and the Assignments of Lease and Rents
without the consent of Dollar (such consent not to be unreasonably withheld or
delayed); provided that in no event may the Loan Agreement or the Notes be
amended so as to increase the amount of Basic Rent payable by any Lessee without
the consent of such Lessee.
SECTION 8.5 Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Master Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
SECTION 8.6 Parties in Interest. Except as expressly provided herein,
none of the provisions of this Master Agreement is intended for the benefit of
any Person except the parties hereto and their respective successors and
permitted assigns.
SECTION 8.7 GOVERNING LAW. THIS MASTER AGREEMENT HAS BEEN DELIVERED IN,
AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TENNESSEE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN
63
71
SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 8.8 Expenses. Whether or not the transactions herein
contemplated are consummated, each Lessee, jointly and severally, agrees to pay,
as Supplemental Rent, all actual, reasonable and documented out-of-pocket costs
and expenses of the Lessor, the Agent and the Lenders in connection with the
preparation, execution and delivery of the Operative Documents and the documents
and instruments referred to therein and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees and
disbursements of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, but not including any fees and
disbursements for any other outside counsel representing any Lender) and of the
Lessor, the Agent and the Lenders in connection with the enforcement of the
Operative Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees actually incurred and
disbursements of counsel for the Lessor, the Agent and the Lenders). All
references in the Operative Documents to "attorneys' fees" or "reasonable
attorneys fees" shall mean reasonable attorneys' fees actually incurred, without
regard to any statutory definition thereof.
SECTION 8.9 Severability. Any provision of this Master Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 8.10 Liabilities of the Funding Parties. No Funding Party shall
have any obligation to any other Funding Party or to any Lessee with respect to
the transactions contemplated by the Operative Documents except those
obligations of such Funding Party expressly set forth in the Operative Documents
or except as set forth in the instruments delivered in connection therewith, and
no Funding Party shall be liable for performance by any other party hereto of
such other party's obligations under the Operative Documents except as otherwise
so set forth. No Lender shall have any obligation or duty to any Lessee, any
other Funding Parties or any other Person with respect to the transactions
contemplated hereby except to the extent of the obligations and duties expressly
set forth in this Master Agreement or the Loan Agreement.
SECTION 8.11 Submission to Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Master Agreement or any other Operative
Document, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Tennessee sitting in Shelby County, the courts of the United
States of America for the Western District of Tennessee, and appellate
courts from any thereof;
64
72
(ii) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in Schedule 8.2 or at
such other address of which the other parties hereto shall have been
notified pursuant to Section 8.2; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law.
SECTION 8.12 Liabilities of the Agent. The Agent shall have no duty,
liability or obligation to any party to this Master Agreement with respect to
the transactions contemplated hereby except those duties, liabilities or
obligations expressly set forth in this Master Agreement or the Loan Agreement,
and any such duty, liability or obligations of the Agent shall be as expressly
limited by this Master Agreement or the Loan Agreement, as the case may be. All
parties to this Master Agreement acknowledge that the Agent is not, and will not
be, performing any due diligence with respect to documents and information
received pursuant to this Master Agreement or any other Operative Agreement
including, without limitation, any Environmental Audit, Title Policy or survey.
The acceptance by the Agent of any such document or information shall not
constitute a waiver by any Funding Party of any representation or warranty of
any Lessee or Guarantor even if such document or information indicates that any
such representation or warranty is untrue.
65
73
IN WITNESS WHEREOF, the parties hereto have caused this Master
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
DOLLAR GENERAL CORPORATION, as a
Lessee and as Guarantor
By:
------------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
S-1
74
ATLANTIC FINANCIAL GROUP, LTD., as
Lessor
By: Atlantic Financial Managers, Inc., its General
Partner
By:
----------------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
S-2
75
SUNTRUST BANK, NASHVILLE, N.A., as Agent
and as a Lender
By:
-----------------------------------------
Name Printed: ▇. ▇. ▇▇▇▇▇
-------------------------------
Title: Sr. V.P.
--------------------------------------
By:
-----------------------------------------
Name Printed: J. ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Sr. V.P.
--------------------------------------
S-3
76
THE FIRST NATIONAL BANK OF CHICAGO, as
a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Managing Director
--------------------------------------
S-4
77
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title:
--------------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
S-6
79
FIRST AMERICAN NATIONAL BANK, as a
Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Title: Senior Vice President
--------------------------------------
S-7
80
UNION PLANTERS BANK OF MIDDLE
TENNESSEE, N.A., as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
S-8
81
PNC BANK, KENTUCKY, INC., as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ NATIONAL
ASSOCIATION, as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
S-10
83
FIRST UNION NATIONAL BANK, as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
S-11
84
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------------
S-12
85
WACHOVIA BANK OF GEORGIA, N.A., as a
Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: V.P.
--------------------------------------
S-13
86
▇▇▇▇▇▇▇ BANK, N.A., as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: V.P.
--------------------------------------
S-14
87
FIFTH THIRD BANK, as a Lender
By:
-----------------------------------------
Name Printed: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
-------------------------------
Title: Assistant V.P.
--------------------------------------
S-15
88
SCHEDULE 2.2
PAYMENT INSTRUCTIONS AND
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3%
Lessor Commitment: $3,000,000
Lender Commitment Percentages:
SunTrust Bank, Nashville, N.A. %
---------------
Lender Commitments:
SunTrust Bank, Nashville, N.A. $
---------------
89
SCHEDULE 8.2
ADDRESSES FOR NOTICES
Lessee:
Lessor: Atlantic Financial Group, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Lender and Agent: SunTrust Bank, Nashville, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
with a copy to:
SunTrust Bank, Atlanta
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Mail Code 3943
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇ ▇▇▇▇▇▇▇
Lender: The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Phone: 312/▇▇▇-▇▇▇▇
Fax: 312/▇▇▇-▇▇▇▇
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇-▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: 216/▇▇▇-▇▇▇▇
Fax: 216/▇▇▇-▇▇▇▇
90
AmSouth Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: 615/▇▇▇-▇▇▇▇
Fax: 615/▇▇▇-▇▇▇▇
First American National Bank
Fourth and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: 615/▇▇▇-▇▇▇▇
Fax: 615/▇▇▇-▇▇▇▇
Union Planters Bank of Middle Tennessee, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: 615/▇▇▇-▇▇▇▇
Fax: 615/▇▇▇-▇▇▇▇
PNC Bank, Kentucky, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: 502/▇▇▇-▇▇▇▇
Fax: 502/▇▇▇-▇▇▇▇
Mercantile Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
TRAM ▇▇-▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Phone: 314/▇▇▇-▇▇▇▇
Fax: 314/▇▇▇-▇▇▇▇
First Union National Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: 615/▇▇▇-▇▇▇▇
91
Fax: 615/▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: 212/▇▇▇-▇▇▇▇
Fax: 212/▇▇▇-▇▇▇▇
Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
--------------------------------------
Phone:
--------------------------------------
Fax:
--------------------------------------
▇▇▇▇▇▇▇ Bank, N.A.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
--------------------------------------
Phone:
--------------------------------------
Fax:
--------------------------------------
Fifth Third Bank
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Mail Drop 109054
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn:
--------------------------------------
Phone:
--------------------------------------
Fax:
--------------------------------------