Exhibit 10 (a)


 


FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this “Amendment”), dated as of May 19, 2006, is entered into
by and between FAMILY DOLLAR STORES, INC., a Delaware corporation (“FDSI”),
FAMILY DOLLAR, INC., a North Carolina corporation (“FDI”) (FDSI and FDI
are collectively referred to herein as the “Borrower”) and BANK OF
AMERICA, N.A. (the “Bank”).


 


RECITALS


 


The Borrower and the Bank are parties to an Amended
and Restated Credit Agreement dated as of May 31, 2001 (including all previous
amendments prior to the date hereof, the “Credit Agreement”) pursuant to
which the Bank has extended certain credit facilities to the Borrower.


 


The Borrower has requested the Bank to agree to
extensions of the Tranche A Termination Date and the Tranche B Termination
Date.


 


The Bank is willing to amend the Credit Agreement to
extend the Tranche A Termination Date and the Tranche B Termination Date,
subject to the terms and conditions of this Amendment.


 


NOW, THEREFORE, for valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


1.             Defined Terms. Unless
otherwise defined herein, capitalized terms used herein shall have the
meanings, if any, assigned to them in the Credit Agreement.


 


2.             Amendments to Credit Agreement.


 


(a)           Section 1.01 of the Credit Agreement
is amended by amending the following definitions to read in their entirety as
follows:


 


(1)           “Tranche A Termination Date”
means May 31, 2011, or such earlier date as the Tranche A Commitment is
terminated pursuant to this Agreement.


 


(2)           “Tranche B Termination Date”
means May 24, 2007, or such earlier date as the Tranche B Commitment is
terminated pursuant to this Agreement.


 


(b)    The
Address for Notices on page 34 of the Credit Agreement is amended in its
entirety to read as follows:


 


Alexis MacElhiney


Director


Bank of America Retail
Finance Group


40 Broad Street


Mailcode: MA5-505-10-01


 

















 


Boston, MA 02109


617-434-3817 (phone)


617-434-2615 (fax)


alexis.macelhiney@bankofamerica.com


 


3.             Representations and Warranties.
The Borrower hereby represents and warrants to the Bank as follows:


 


(a)           No Default or Event of Default has
occurred and is continuing.


 


(b)           The execution, delivery and
performance by the Borrower of this Amendment have been duly authorized by all
necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and enforceable.
The Credit Agreement as amended by this Amendment constitutes the legal, valid
and binding obligations of the Borrower, enforceable against it in accordance
with its terms, except as limited by applicable Debtor Relief Laws and general
principles of equity, without defense, counterclaim or offset.


 


(c)           All representations and warranties of
the Borrower contained in the Credit Agreement are true and correct on and as
of the date hereof.


 


4.             Effective Date. This
Amendment will become effective as of May 25, 2006 (the “Effective Date”),
provided that the Bank has received from the Borrower a duly executed
original (or, if elected by the Bank, an executed facsimile copy) of this
Amendment, together with a duly executed Guarantor Acknowledgment and Consent
in the form attached hereto (the “Consent”).


 


5.             Reservation of Rights. The
Borrower acknowledges and agrees that the execution and delivery by the Bank of
this Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Bank to enter into amendments under the same, similar or any other
circumstances in the future.


 


6.             Miscellaneous.


 


(a)           Except as herein expressly amended,
all terms, covenants and provisions of the Credit Agreement are and shall
remain in full force and effect and all references therein and in the other
Loan Documents to such Credit Agreement shall henceforth refer to the Credit
Agreement as amended by this Amendment. This Amendment shall be deemed incorporated
into, and a part of, the Credit Agreement. This Amendment is a Loan Document.


 


(b)           This Amendment shall be binding upon
and inure to the benefit of the parties hereto and to the Credit Agreement and
their respective successors and assigns. No third party beneficiaries are
intended in connection with this Amendment.


 


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(c)           This Amendment shall be governed by
and construed in accordance with the law of the State of North Carolina.


 


(d)           This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Bank or the Borrower of a facsimile transmitted document
purportedly bearing the signature of the Bank or the Borrower, as applicable,
shall bind the Bank or the Borrower with the same force and effect as the
delivery of a hard copy original. Any failure by the Bank or the Borrower to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of
such document which hard copy original was not received by the Bank or the
Borrower, as applicable.


 


(e)           This Amendment, together with the
Credit Agreement, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein. This
Amendment supersedes all prior drafts and communications with respect thereto. This
Amendment may not be amended except in accordance with the provisions of
Section 8.04 of the Credit Agreement.


 


(f)            If any term or provision of this
Amendment shall be deemed prohibited by or invalid under any applicable law,
such provision shall be invalidated without affecting the remaining provisions
of this Amendment or the Credit Agreement, respectively.


 


(g)           Notice of Final Agreement. THIS
WRITTEN AMENDMENT, THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS, AND THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.


 


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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment under seal as of the date first above written.


 


	
  FAMILY DOLLAR STORES,
  INC.

  	
  FAMILY DOLLAR, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By: 

  	
   /s/ C. Martin
  Sowers

  	
  (SEAL)

  	
   

  	
  By: 

  	
   /s/ C. Martin
  Sowers 

  	
  (SEAL)

  	
   

  
	
  Name: 

  	
   C. Martin Sowers

  	
   

  	
  Name: 

  	
   C. Martin Sowers

  	
   

  
	
  Title: 

  	
   Sr. Vice
  President – Finance

  	
   

  	
  Title: 

  	
   Sr. Vice
  President – Finance

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   /s/ Alexis MacElhiney

  	
  (SEAL)

  	
   

  	
   

  
	
  Name: 

  	
   Alexis MacElhiney

  	
   

  	
   

  
	
  Title: 

  	
   Director

  	
   

  	
   

  
											



 


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GUARANTOR ACKNOWLEDGMENT
AND CONSENT


 


Each of the undersigned Guarantors, each a guarantor
with respect to the Borrower’s obligations under the Credit Agreement, hereby
(i) acknowledges and consents to the terms of and the execution, delivery and
performance of the foregoing Third Amendment to Amended and Restated Credit
Agreement (the “Amendment”) (without implying the need for any such
acknowledgement or consent), and (ii) represents and warrants to the Bank that,
both before and after giving effect to the Amendment, the Guaranty to which
each of the undersigned is a party remains in full force and effect as an
enforceable obligation of such Guarantor, in accordance with its terms, except
as enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity, without defense, counterclaim or offset, provided
that nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim, and that it is in compliance with all of its
covenants contained therein. Each Guarantor further represents that the
execution, delivery and performance by such Person of this Acknowledgement and
Consent have been duly authorized by all necessary corporate, partnership and
other action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. Each Guarantor remakes as
of the Effective Date (as defined in the Amendment) all of the representations
and warranties made by it pursuant to the Guaranty to which the undersigned is
a party. Capitalized terms used herein and not otherwise defined have the
respective meanings defined in the Credit Agreement (as defined in the
Amendment).


 


IN WITNESS WHEREOF, each of the undersigned has
executed this Acknowledgement and Consent under seal by its duly authorized
officers as of this 19th day of May, 2006.


 


	
   

  	
  FAMILY DOLLAR SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ C. Martin
  Sowers

  	
  (SEAL)

  	
   

  
	
   

  	
  Name:

  	
   C. Martin Sowers

  	
   

  
	
   

  	
  Title: 

  	
   Sr. Vice
  President – Finance

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FAMILY DOLLAR OPERATIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ C. Martin
  Sowers

  	
  (SEAL)

  	
   

  
	
   

  	
  Name:

  	
   C. Martin Sowers

  	
   

  
	
   

  	
  Title: 

  	
   Sr. Vice
  President – Finance

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FAMILY DOLLAR TRUCKING, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ C. Martin
  Sowers

  	
  (SEAL)

  	
   

  
	
   

  	
  Name:

  	
   C. Martin Sowers

  	
   

  
	
   

  	
  Title: 

  	
   Sr. Vice
  President – Finance