EXHIBIT 10.1
CONSENT
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THIS CONSENT (this "Consent"), dated as of December 19, 2006, with an
effective date as set forth in Section 3 hereof, is entered into by and among
FAMILY DOLLAR STORES, INC., a Delaware corporation (the "Company") and FAMILY
DOLLAR, INC., a North Carolina corporation ("FDI" and, together with the
Company, the "Borrowers"), the Lenders party to the Credit Agreement referred to
below (the "Lenders") and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative
Agent for the Lenders (the "Administrative Agent").
Statement of Purpose
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The Borrowers, the Administrative Agent and the Lenders are parties to the
Credit Agreement dated as of August 24, 2006 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement") pursuant to
which the Lenders have agreed to make, and have made, certain Loans to the
Borrowers.
Pursuant to Section 7.1(b) of the Credit Agreement, the Company is required
to deliver audited financial statements to the Administrative Agent by no later
than one-hundred five (105) days after the end of each Fiscal Year (the "Annual
Required Delivery Date"). In addition, Section 7.1(a) of the Credit Agreement
requires the Company to deliver unaudited financial statements to the
Administrative Agent by no later than sixty (60) days after the end of each
fiscal quarter (the "Quarterly Required Delivery Date"). Section 7.2 of the
Credit Agreement requires the Company to deliver an Officer's Compliance
Certificate in connection with (a) the audited financial statements delivered
pursuant to Section 7.1(b) and (b) the quarterly financial statements delivered
pursuant to Section 7.1(a), in each case, on or prior to the Annual Required
Delivery Date and the Quarterly Required Delivery Date, respectively.
The Company (a) will be unable to deliver the audited financial statements
required to be delivered pursuant to Section 7.1(b) for the Fiscal Year ended
August 26, 2006 (the "2006 Annual Financial Statements") and the Officer's
Compliance Certificate related to the 2006 Annual Financial Statements
(collectively, the "Outstanding Annual Financial Information") on or prior to
the Annual Required Delivery Date, (b) will be unable to deliver the quarterly
unaudited financial statements required to be delivered pursuant to Section
7.1(a) for the fiscal quarter ended November 26, 2006 (the "November 2006
Quarterly Financial Statements") and the Officer's Compliance Certificate
related to the November 2006 Quarterly Financial Statements (collectively, the
"Outstanding Quarterly Financial Information") on or prior to the Quarterly
Required Delivery Date and (c) has requested that the Required Lenders extend
the required time for delivery of the Outstanding Annual Financial Information
and the Outstanding Quarterly Financial Information (collectively, the
"Outstanding Financial Information").
Subject to and in accordance with the terms and conditions set forth
herein, the Required Lenders are willing to extend the delivery dates for the
Outstanding Financial Information to March 31, 2007.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
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1. Capitalized Terms. All capitalized undefined terms used in this
Consent (including, without limitation, in the statement of purpose hereto)
shall have the meanings assigned thereto in the Credit Agreement.
2. Consent. Pursuant to Section 13.2 of the Credit Agreement and
effective in accordance with Section 3 hereof, the Required Lenders hereby
extend the required time for delivery of the Outstanding Financial Information
to March 31, 2007. The parties hereto acknowledge and agree that with respect to
any reporting period occurring after November 26, 2006, the provisions of
Sections 7.1 and 7.2 (including without limitation the requirements regarding
delivery times) shall remain in full force and effect.
3. Effectiveness. This Consent shall be deemed to be effective upon
satisfaction of each of the following conditions:
(a) Consent Documents. The Administrative Agent shall have received a
duly executed counterpart of this Consent from the Administrative Agent, each
Credit Party and the Required Lenders; and
(b) Amendment to Note Purchase Agreement. The Administrative Agent
shall have received a duly executed copy of such documentation reflecting the
consent of the purchasers party to that certain Note Purchase Agreement dated as
of September 27, 2005 (as amended, restated, supplemented or otherwise modified
prior to the date hereof) evidencing the Senior Unsecured Notes necessary to
extend the required date for delivery of the August 26, 2006 audited financial
statements and November 26, 2006 quarterly financial statements to March 31,
2007 or later.
4. Covenant. The Borrowers, jointly and severally, shall promptly
(but in any event within 10 days of the date hereof) reimburse the
Administrative Agent for all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Consent, including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent.
5. Reaffirmation of Subsidiary Guaranty Agreement.
(a) By its execution hereof, each Subsidiary Guarantor hereby
expressly (i) consents to the modifications and amendments set forth in this
Consent, (ii) reaffirms all of its respective covenants, representations,
warranties and other obligations set forth in the Subsidiary Guaranty Agreement
and the other Loan Documents to which it is a party and (iii) acknowledges,
represents and agrees that its respective covenants, representations, warranties
and other obligations set forth in the Subsidiary Guaranty Agreement and the
other Loan Documents remain in full force and effect.
(b) Each Subsidiary Guarantor confirms that the Subsidiary Guaranty
Agreement shall continue to be in full force and effect and is hereby ratified
and reaffirmed in all respects as if fully restated as of the date hereof by
this Consent.
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6. Effect of Consent. Except as expressly provided herein, the
Credit Agreement and the Loan Documents shall remain unmodified and in full
force and effect. This Consent shall not be deemed (a) to be a waiver of, or
consent to, a modification or amendment of, any other term or condition of the
Credit Agreement or any other Loan Document (including, without limitation, any
term or condition related to the Stock Option Event (as defined below)), (b) to
be a waiver of, or consent to, a modification or amendment to any term or
provision of any Loan Document specifically consented to, waived, amended or
modified by this Consent on any other occasion, or (c) to prejudice any other
right or rights which the Administrative Agent or the Lenders may now have or
may have in the future under or in connection with the Credit Agreement or the
other Loan Documents or any of the instruments or agreements referred to therein
(including, without limitation, in connection with the Stock Option Event), as
the same may be amended or modified from time to time. References in the Credit
Agreement to "this Agreement" (and indirect references such as "hereunder",
"hereby", "herein", and "hereof") and in any Loan Document to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
7. Representations and Warranties/No Default.
(a) By its execution hereof, each Credit Party hereby certifies that
(after giving effect to this Consent) (i) each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents is
true and correct as of the date hereof as if fully set forth herein, except for
any representation and warranty made as of an earlier date, which representation
and warranty shall remain true and correct as of such earlier date and (ii) no
Default or Event of Default has occurred and is continuing as of the date
hereof, except, in each case, where such foregoing certifications may be untrue
by reason of the issuance and dating of previously issued stock options and the
accounting therefor, all as previously disclosed to the Administrative Agent and
in filings with the Securities and Exchange Commission (the "Stock Option
Event").
(b) By its execution hereof, each Credit Party hereby represents and
warrants that it has the right, power and authority and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Consent and each other document executed in connection herewith to which it is a
party in accordance with their respective terms.
(c) By its execution hereof, each Credit Party hereby represents and
warrants that this Consent has been duly executed and delivered by its duly
authorized officers, and each such document constitutes the legal, valid and
binding obligation of such Credit Party, enforceable in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
8. Governing Law. This Consent shall be governed by, and construed
in accordance with, the law of the State of North Carolina, without reference to
the conflicts or choice of law principles thereof.
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9. Counterparts. This Consent may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
constitute one and the same agreement.
10. Fax Transmission. A facsimile, telecopy or other reproduction of
this Consent may be executed by one or more parties hereto, and an executed copy
of this Consent may be delivered by one or more parties hereto by facsimile or
similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Consent as well as any facsimile, telecopy or other reproduction hereof.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed as of the date and year first above written.
FAMILY DOLLAR STORES, INC., as Borrower
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Operating Officer
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FAMILY DOLLAR, INC., as Borrower
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Operating Officer
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FAMILY DOLLAR SERVICES, INC., as Subsidiary
Guarantor
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Operating Officer
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FAMILY DOLLAR OPERATIONS, INC., as Subsidiary
Guarantor
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Operating Officer
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FAMILY DOLLAR TRUCKING, INC., as Subsidiary
Guarantor
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and Chief Operating Officer
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AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender,
Fronting Bank and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Managing Director
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BRANCH BANKING AND TRUST COMPANY, as Syndication
Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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REGIONS BANK, as Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION, as
Documentation Agent and Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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BANK OF AMERICA, N.A., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Director
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NATIONAL CITY BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Officer
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