EXHIBIT 10 (ii)
AMENDMENT NO. 2 TO CREDIT
AGREEMENT; CONSENT AND WAIVER
THIS AMENDMENT NO. 2 (the "Amendment") is dated as of the
31st day of December, 1997, by and among Family Dollar Stores,
Inc., a Delaware corporation ("FDSI"), Family Dollar, Inc.
("FDI") (FDSI and FDI are collectively referred to as the
"Borrower") and NationsBank, N.A. (The "Bank").
RECITALS
(a) FDSI and the Bank previously have entered into that
certain Credit Agreement, dated as of March 31, 1996, as amended
by Amendment No. 1 dated March 26, 1997 (the "Agreement")
pursuant to which the Bank has made a revolving credit facility
available to FDSI.
(b) FDSI intends to reorganize its corporate structure and
has requested that the Bank consent to such reorganization.
(c) FDSI has requested certain changes in the terms of the
Credit Agreement and the Bank is willing to agree to those
changes on the terms and conditions set forth herein.
(d) FDI desires to join in the Credit Agreement as a
Borrower.
(e) FDSI, FDI and the Bank desire to amend the Agreement as
set forth herein.
NOW THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration,
the parties agree as follows:
SECTION 1. Definitions. Capitalized terms used in this
Amendment and not defined herein shall have the meanings assigned
to such terms in the Agreement.
SECTION 2. Amendments to the Agreement. The Agreement is,
effective as of the date first above written, hereby amended as
follows:
(a) All references to the "Borrower" in the Agreement are
hereby amended to mean FDSI and FDI collectively and
individually as the context requires.
(b) Section 1.01 is amended by adding the following
definitions:
"FDI" means Family Dollar, Inc., a North Carolina
corporation and wholly owned subsidiary of FDSI.
"FDSI" means Family Dollar Stores, Inc., a Delaware
corporation.
SECTION 3. Obligations of Borrower. FDSI shall remain
responsible for the performance of its obligations under the
Agreement, as amended hereby, and its obligations under the other
Loan Documents.
By signing this Amendment, FDI hereby agrees to become a
Borrower under the Credit Agreement and assumes all of the
benefits and obligations, whether now existing or hereafter
arising, of the Borrower under the Agreement and the other Loan
Documents. FDI agrees to be bound by the provisions of the
Agreement and will perform in accordance with its terms all of
the obligations which by the terms of the Agreement are required
to be performed as the Borrower. FDI and FDSI agree that all of
their obligations as the Borrower under the Agreement and the
Notes shall be joint and several.
SECTION 4. Representations and Warranties. In order to
induce the Bank to enter into this Amendment and the transactions
described herein, each of the Borrowers hereby represents and
warrants that each has examined or re-examined the Agreement and
that as of the date hereof:
(i) This Amendment has been duly authorized, executed and
delivered on its behalf, and the Credit Agreement, as
amended hereby, constitutes its legal, valid and
binding obligation enforceable against it in
accordance with its terms, except as limited by
applicable Debtor Relief Laws and general principles
of equity;
(ii) The representations and warranties made by the
Borrower in Article V thereof (except that the
financial statements referred to in Section 5.02
shall be those most recently furnished to the Bank
pursuant to Section 6.01) are true on and as of the
date hereof;
(iii) There has been no material change in the condition,
financial or otherwise, of the Borrowers and its
Subsidiaries since the date of the most recent
financial reports of the Borrowers received by the
Bank under Section 6.01 thereof, other than changes in
the ordinary course of business, none of which has
been a material adverse change; and
(iv) No event has occurred and no condition exists which,
upon the consummation of the transaction contemplated
hereby, would constitute a Default or an Event or
Default on the part of the Borrower under the
Agreement or the Notes, either immediately or with
the lapse of time or the giving of notice, or both.
SECTION 5. Consent and Waiver. The Bank hereby consents to
the corporate reorganization of FDSI and its Subsidiaries as
outlined in the letters from Xxxxxx X. Xxxxxxx, Xx. to the Bank
dated December 11, 1997 and December 23, 1997, respectively (the
"Reorganization"). To the extent the Reorganization causes any
violation or non-compliance with Section 6.08, the Bank waives
such violation or non-compliance. This consent and waiver is
effective only as to the Reorganization and shall not constitute
a consent or waiver to any other transactions or to any other
disposition of any other property of the Borrower or in any way
modify the Agreement or discharge any of the Borrower's
obligations thereunder.
SECTION 6. Amended and Restated Notes. FDSI and FDI agree
to execute and deliver to the Bank, the Amended and Restated
Tranche A Note and the Amended and Restated Tranche B Note
substantially in the forms of Exhibits A, B, C and D hereto.
FDSI, FDI and the Bank acknowledge and agree that such Amended
and Restated Notes collectively evidence the principal
indebtedness of the Tranche A Loan and the Tranche B Loan under
the Agreement, and that such principal indebtedness of the
Borrower or the obligation of the Bank to make Loans shall not
exceed the amounts of the Tranche A Commitment and the Tranche B
Commitment, rspectively. Upon receipt of such Amended and
Restated Notes, the Bank agrees to return promptly the Tranche A
Note and the Tranche B Note originally delivered in connection
with the Agreement.
SECTION 7. Guarantors. Each of the Guarantors has joined
in this Amendment for the purpose of consenting hereto and
confirming that the Guarantee remains in full force and effect.
SECTION 8. Integration: Confirmation. On and after the
date hereof, each reference in the Agreement to "this Agreement,"
"herein," "hereunder" or words of similar import, and each such
reference in all other documents delivered in connection with the
Agreement shall be deemed to be a reference to the Agreement as
amended by this Amendment, and the Agreement as so amended shall
be read as a single integrated document. Except as specifically
amended by this Amendment, all other terms and provisions of the
Agreement shall continue in full force and effect and unchanged
and are hereby confirmed in all respects.
SECTION 9. Counterparts. This Amendment may be signed in
any number of counterparts (including counterparts signed and
delivered by facsimile), each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
SECTION 10. Governing Law. This Amendment shall be
construed in accordance with and governed by the law of the State
of North Carolina.
SECTION 11. Other Documents. FDI and FDSI agree to deliver
or cause to be delivered within thirty days from the date hereof,
an Incumbency Certificate and a Secretary's Certificate of FDI
including certified copies of FDI's Articles of Incorporation,
bylaws and resolutions of the board of directors authorizing the
entering into of this Amendment and assuming its obligations as a
Borrower under the Agreement. FDSI also agrees to deliver a
certified copy of its board of directors resolutions approving
the Reorganization.
SECTION 12. Further Assurances. All instruments and
documents incident to the consummation of the transactions
contemplated hereby shall be satisfactory in form and substance
to the Bank; the Bank shall have received copies of all
additional agreements, instruments and documents which it may
reasonably request in connection therewith, including copies of
resolutions of the Borrowers authorizing the transactions
contemplated by this Amendment, such documents, when appropriate,
to be certified by appropriate corporate or governmental
authorities; and all proceedings of the Borrowers relating to the
matters provided for herein shall be satisfactory to the Bank.
SECTION 13. Ratification. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the
other Loan Documents are hereby confirmed and ratified in all
respects and shall remain in full force and effect according to
their respective terms.
SECTION 14. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be deemed to be
an original as against any party whose signature appears thereon
and all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
BORROWERS:
FAMILY DOLLAR STORES, INC. FAMILY DOLLAR, INC.
BY: C. XXXXXX XXXXXX By: C. XXXXXX XXXXXX
Name: C. XXXXXX XXXXXX Name: C. XXXXXX XXXXXX
Title: Senior Vice President- Title: Senior Vice President-
Finance Finance
Acknowledged and Consented to by:
GUARANTORS:
FAMILY DOLLAR SERVICES, INC. FAMILY DOLLAR OPERATIONS, INC.
BY: C. XXXXXX XXXXXX By: C. XXXXXX XXXXXX
Name: C. XXXXXX XXXXXX Name: C. XXXXXX XXXXXX
Title: Senior Vice President- Title: Senior Vice President-
Finance Finance
FAMILY DOLLAR TRUCKING, INC.
BY: C. XXXXXX XXXXXX
Name: C. XXXXXX XXXXXX
Title: Senior Vice President-
Finance
BANK:
NATIONSBANK, N.A.
BY: XXXXXXX X. XXXXXXXXX, XX.
Name: XXXXXXX X. XXXXXXXXX, XX.
Title: Vice President
EXHIBIT A
AMENDED AND RESTATED TRANCHE A NOTE
$50,000,000.00 December 31, 1997
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR STORES,
INC., a Delaware corporation (the "Borrower"), hereby promises to
pay to the order of NATIONSBANK, N.A. (the "Bank"), at the
Principal Office, in lawful money of the United States of
America, the principal amount of Fifty Million Dollars
($50,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche A Loans made by the Bank
to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Tranche A Loan, at such office, in like money, for the
period commencing on the date of such Tranche A Loan until such
Tranche A Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The books and records of the Bank shall be prima facie
evidence of all amounts outstanding hereunder.
This Note is the Tranche A Note referred to in the Credit
Agreement of even date herewith, between the Borrower and the
Bank (such Credit Agreement, as the same may be amended,
modified, or supplemented from time to time, being referred to
herein as the "Credit Agreement"), and evidences Tranche A Loans
made by the Bank thereunder. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity of
this Note upon the happening of certain stated events and for
prepayments of Tranche A Loans prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
This Note shall be governed by and construed in accordance
with the laws of the State of North Carolina and the applicable
laws of the United States of America.
FAMILY DOLLAR STORES, INC.
By:
Title:
EXHIBIT B
AMENDED AND RESTATED TRANCHE A NOTE
$50,000,000.00 December 31, 1997
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR, INC., a
North Carolina corporation (the "Borrower"), hereby promises to
pay to the order of NATIONSBANK, N.A. (the "Bank"), at the
Principal Office, in lawful money of the United States of
America, the principal amount of Fifty Million Dollars
($50,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche A Loans made by the Bank
to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Tranche A Loan, at such office, in like money, for the
period commencing on the date of such Tranche A Loan until such
Tranche A Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The books and records of the Bank shall be prima facie
evidence of all amounts outstanding hereunder.
This Note is the Tranche A Note referred to in the Credit
Agreement of even date herewith, between the Borrower and the
Bank (such Credit Agreement, as the same may be amended,
modified, or supplemented from time to time, being referred to
herein as the "Credit Agreement"), and evidences Tranche A Loans
made by the Bank thereunder. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity of
this Note upon the happening of certain stated events and for
prepayments of Tranche A Loans prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
This Note shall be governed by and construed in accordance
with the laws of the State of North Carolina and the applicable
laws of the United States of America.
FAMILY DOLLAR, INC.
By:
Title:
EXHIBIT C
AMENDED AND RESTATED TRANCHE B NOTE
$50,000,000.00 December 31, 1997
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR STORES,
INC., a Delaware corporation (the "Borrower"), hereby promises to
pay to the order of NATIONSBANK, N.A. (the "Bank"), at the
Principal Office, in lawful money of the United States of
America, the principal amount of Fifty Million Dollars
($50,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche B Loans made by the Bank
to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Tranche B Loan, at such office, in like money, for the
period commencing on the date of such Tranche B Loan until such
Tranche B Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The books and records of the Bank shall be prima facie
evidence of all amounts outstanding hereunder.
This Note is the Tranche B Note referred to in the Credit
Agreement of even date herewith, between the Borrower and the
Bank (such Credit Agreement, as the same may be amended,
modified, or supplemented from time to time, being referred to
herein as the "Credit Agreement"), and evidences Tranche B Loans
made by the Bank thereunder. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity of
this Note upon the happening of certain stated events and for
prepayments of Tranche B Loans prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
This Note shall be governed by and construed in accordance
with the laws of the State of North Carolina and the applicable
laws of the United States of America.
FAMILY DOLLAR STORES, INC.
By:
Title:
EXHIBIT D
AMENDED AND RESTATED TRANCHE B NOTE
$50,000,000.00 December 31, 1997
FOR VALUE RECEIVED, the undersigned, FAMILY DOLLAR, INC., a
North Carolina corporation (the "Borrower"), hereby promises to
pay to the order of NATIONSBANK, N.A. (the "Bank"), at the
Principal Office, in lawful money of the United States of
America, the principal amount of Fifty Million Dollars
($50,000,000) or such lesser amount as shall equal the aggregate
unpaid principal amount of the Tranche B Loans made by the Bank
to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Tranche B Loan, at such office, in like money, for the
period commencing on the date of such Tranche B Loan until such
Tranche B Loan shall be paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
The books and records of the Bank shall be prima facie
evidence of all amounts outstanding hereunder.
This Note is the Tranche B Note referred to in the Credit
Agreement of even date herewith, between the Borrower and the
Bank (such Credit Agreement, as the same may be amended,
modified, or supplemented from time to time, being referred to
herein as the "Credit Agreement"), and evidences Tranche B Loans
made by the Bank thereunder. The Credit Agreement, among other
things, contains provisions for acceleration of the maturity of
this Note upon the happening of certain stated events and for
prepayments of Tranche B Loans prior to the maturity of this Note
upon the terms and conditions specified in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
This Note shall be governed by and construed in accordance
with the laws of the State of North Carolina and the applicable
laws of the United States of America.
FAMILY DOLLAR, INC.
By:
Title:
