FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (the "First Amendment") is made as of
this 10th day of May, 2004 by and among
XXXXXXX'X, INC., a corporation organized under the laws of the State of Delaware having a place of
business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, as Lead Borrower for the Borrowers, being
said XXXXXXX'X, INC.,
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP, a limited partnership organized under the laws of
the State of Texas having a place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx
00000;
THE XXXXXX DRY GOODS COMPANY, a corporation organized under the laws of the State of Colorado
having a place of business at Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000;
DILLARD TENNESSEE OPERATING LIMITED PARTNERSHIP, a limited partnership organized under the laws
of the State of Tennessee having a place of business at 0000 Xxxxxxx 00 X., Xxxxxxxxx, Xxxxxxxxx
00000;
X.X. XXXXXX & COMPANY, INCORPORATED, a corporation organized under the laws of the State of
Delaware having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
X.X. XXXX & COMPANY, a corporation organized under the laws of the State of North Carolina
having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
THE XXXXXXX-XXXXX DRY GOODS, CO., a corporation organized under the laws of the State of
Tennessee having a place of business at 0000 X. Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000;
DILLARD STORE SERVICES, INC., a corporation organized under the laws of the State of Arizona
having a place of business at 0000 X. 00xx Xxxxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000;
THE XXXXXX COMPANY, a corporation organized under the laws of the State of Delaware having a
place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000;
THE XXXXXXX COMPANY, a corporation organized under the laws of the State of Kentucky having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
GAYFER'S XXXXXXXXXX FAIR CO., a corporation organized under the laws of the State of Delaware
having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
THE LION DRY GOODS COMPANY, a corporation organized under the laws of the State of Ohio having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
X. XXXXX & SONS, a corporation organized under the laws of the State of Kentucky having a place
of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
MERCANTILE STORES COMPANY, INC., a corporation organized under the laws of the State of Delaware
having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
DILLARD'S WYOMING, INC., a corporation organized under the laws of the State of Wyoming having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
CONSTRUCTION DEVELOPERS, INCORPORATED, a corporation organized under the laws of the State of
Arkansas having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
DILLARD INTERNATIONAL, INC., a corporation organized under the laws of the State of Nevada
having a place of business at 0000 Xxx Xxxxx Xxxx. X., Xxx Xxxx, Xxxxxx 00000;
CONDEV NEVADA, INC., a corporation organized under the laws of the State of Nevada having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
MERCANTILE KANSAS CITY, INC., a corporation organized under the laws of the State of Delaware
having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
XXXXXXXX COMPANY, a corporation organized under the laws of the State of Montana having a place
of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
X.X. XXXXX & COMPANY, a corporation organized under the laws of the State of South Carolina
having a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
U.S. ALPHA, INC., a corporation organized under the laws of the State of Nevada having a place
of business at 0000 X. Xxxxx, Xxxxxx, Xxxx 00000; and
DILLARD'S DOLLARS, INC., a corporation organized under the laws of the State of Arkansas having
a place of business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000; and
The financial institutions and other entities identified on the signature pages to this First
Amendment as a "Lender" (collectively, the "Lenders" and each individually, a "Lender"); and
JPMORGAN CHASE BANK, as Administrative Agent for the Lenders, a New York banking corporation,
having a place of business at 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000; and
FLEET RETAIL GROUP, INC., as Collateral Agent and as Syndication Agent, a Delaware corporation,
having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
GENERAL ELECTRIC CAPITAL CORPORATION, THE CIT GROUP/BUSINESS CREDIT, INC. and XXXXX FARGO
FOOTHILL, LLC, as Co-Documentation Agents; and
CONGRESS FINANCIAL CORPORATION, NATIONAL CITY COMMERCIAL FINANCE, INC. and GMAC COMMERCIAL
FINANCE LLC, as Managing Agents;
in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
W I T N E S S E T H
A. Reference is made to the Amended and Restated Credit Agreement (the "Credit Agreement") dated as
of December 12, 2003 by and between, among others, the Borrowers, the Lenders, the Administrative Agent and the
Collateral Agent.
B. The Borrowers and the Lenders desire to modify and amend certain provisions of the Credit
Agreement.
Accordingly, the Administrative Agent, the Collateral Agent, the Lenders, and the Borrowers agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. Amendments to Article I of the Credit Agreement. The provisions of Article I of the Credit Agreement
are hereby amended as follows:
a. By adding the following new definition in appropriate alphabetical order:
"Permitted Joint Venture" means, with respect to any Subsidiary Borrower, a joint venture or
partnership in which each of the following conditions are satisfied:
(i) The Lead Borrower shall have furnished the Administrative Agent with five
(5) days prior notice of such intended joint venture or partnership and shall have furnished the
Administrative Agent with a current draft of the joint venture or partnership agreement and
other applicable organizational documents, and a summary of the structure and terms of the
transaction, and such other information as the Administrative Agent may reasonably require.
(ii) No Default or Event of Default shall exist at the time of, or arise
from, the Subsidiary Borrower's entering into such joint venture or partnership.
(iii) The joint venture or partnership shall be for the purpose of acquiring,
constructing, managing and/or operating an enclosed mall, an open-air shopping center or a stand
alone store, in each case in which a store operated by a Borrower or a Subsidiary of a Borrower
is to be located.
b. By adding the following sentence at the end of the definition of "Subsidiary":
In no event shall Dillard National Bank, or a Permitted Joint Venture be deemed a Subsidiary for
purposes of Article VI hereof and in no event shall Dillard Asset Funding Company be deemed a
Subsidiary for purposes of the Loan Documents.
3. Amendments to Article IV of the Credit Agreement. The provisions of Section 4.02(c) of the Credit
Agreement are hereby deleted in their entirety and the following substituted in their stead:
(c) No Default. On the date of each such Borrowing and the issuance of each Letter of Credit,
and after giving effect to such Borrowing or issuance of such Letter of Credit, the Borrowers
shall be in compliance with all of the terms and provisions set forth herein and in the other
Loan Documents to be observed or performed and no Default or Event of Default shall have
occurred and be continuing.
4. Amendments to Article VI of the Credit Agreement. The provisions of Article VI of the Credit Agreement
are hereby amended as follows:
a. The provisions of Section 6.01(v) of the Credit Agreement are hereby deleted in their entirety
and the following substituted in their stead:
(v) Indebtedness incurred to finance or refinance any Real Estate owned by any Borrower;
b. The provisions of Section 6.01 are hereby amended by deleting the word "and" at the end of
clause (vi), renumbering clause (vii) as clause (viii) and adding the following new clause (vii):
(vii) Guarantees of Indebtedness incurred in connection with Permitted Joint Ventures,
provided that at the time that such Guarantees are entered into, no Default or Event of Default
then exists or would result from the making of such Guarantees.
c. The provisions of Section 6.04 of the Credit Agreement is hereby amended by deleting the word
"and" at the end of clause (f), deleting the period at the end of clause (g) and adding the
following at the end of clause (g):
(h) Guaranties of Indebtedness permitted under Section 6.01 hereof; and
(i) Investments in Permitted Joint Ventures, provided that at the time that commitments to make
such Investments become binding, no Default or Event of Default then exists or would result from
the making of such Investment; and
(j) Investments in Dillard Asset Funding Company.
d. The provisions of Section 6.05 of the Credit Agreement are hereby amended as follows:
i. By adding the following immediately after Section 6.05(a)(iii):
(iv) sales of real and personal property in connection with the closure of any
store location to the extent such property is not, in the Lead Borrower's
reasonable judgment, necessary for the continued conduct of the Subsidiary
Borrowers' business; and
(v) the sale of the beneficial interests in Dillard Asset Funding Company;
ii. By adding the following immediately after Section 6.05(b)(ii)(C):
(D) sales of real and personal property in connection with the closure of any store
location to the extent such property is not, in the Lead Borrower's reasonable
judgment, necessary for the continued conduct of the Lead Borrower's business;
e. The provisions of Section 6.06(b) of the Credit Agreement are hereby deleted in their entirety
and the following substituted in their stead:
The Subsidiary Borrowers will not at any time, and will not permit any of their
Subsidiaries to make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Indebtedness, except:
i. required payments of principal and interest as and when due in respect
of any Indebtedness permitted under Section 6.01;
ii. refinancings of Indebtedness to the extent permitted by Section 6.01;
and
iii.optional prepayments, redemptions, retirements, acquisition,
cancellation or termination of Indebtedness of any Subsidiary Borrower (collectively, a
"Prepayment") as long as (A) no Default or Event of Default then exists or, after
giving effect to such Prepayment, would arise; and (B) during the ninety (90) day
period prior (on a pro forma basis) to the date of such Prepayment, and for the ninety
(90) day period following (on a projected basis) the date of such Prepayment, there
shall be daily Excess Availability of at least $250,000,000; and (C) the aggregate of
all such Prepayments shall not exceed the sum of $500,000,000 plus the Refreshing
Basket from and after the Effective Date.
f. The provisions of Section 6.06(c) of the Credit Agreement are hereby deleted in their entirety
and the following substituted in their stead:
(c) After the occurrence and during the continuation an
Event of Default under Sections 7.01(h) or 7.01(i) hereof, the Lead Borrower
will not at any time, make or agree to pay or make, directly or indirectly any
payment or other distribution (whether in cash securities or other property) of
or in respect of principal of or interest on any Indebtedness, or any payment
or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any
Indebtedness, except required payments of principal and interest as and when
due in respect of any permitted Indebtedness and refinancings of permitted
Indebtedness.
5. Conditions Precedent to Effectiveness. This First Amendment shall not be effective until each of the
following conditions precedent have been fulfilled to the satisfaction of the Administrative Agent:
a. This First Amendment shall have been duly executed and delivered by the Borrowers and the
Required Lenders and shall be in form and substance satisfactory to the Administrative Agent.
b. All action on the part of the Borrowers necessary for the valid execution, delivery and
performance by the Borrowers of this First Amendment shall have been duly and effectively taken
and evidence thereof reasonably satisfactory to the Administrative Agent shall have been
provided to the Administrative Agent.
c. The Borrowers shall have provided such additional instruments and documents to the
Administrative Agent as the Administrative Agent and its counsel may have reasonably requested.
6. Miscellaneous.
a. This First Amendment may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.
b. This First Amendment expresses the entire understanding of the parties with respect to the
transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.
c. Any determination that any provision of this First Amendment or any application hereof is
invalid, illegal or unenforceable in any respect and in any instance shall not effect the
validity, legality, or enforceability of such provision in any other instance, or the validity,
legality or enforceability of any other provisions of this First Amendment.
d. The Borrowers shall pay on demand all costs and expenses of the Administrative Agent, including,
without limitation, reasonable attorneys' fees in connection with the preparation, negotiation,
execution and delivery of this First Amendment.
e. The Borrowers warrant and represent that the Borrowers have consulted with independent legal
counsel of the Borrowers' selection in connection with this First Amendment and are not relying
on any representations or warranties of the Administrative Agent, any Lender, or their counsel
in entering into this First Amendment.
[remainder of page left intentionally blank; signature pages follow]
IN WITNESS WHEREOF, the parties have duly executed this First Amendment as of the day and year first
above written.
XXXXXXX'X, INC.
as Lead Borrower and Borrower
XXXXXXX TEXAS OPERATING LIMITED PARTNERSHIP
By its General Partner
Xxxxxxx'x, Inc.
as Borrower
THE XXXXXX DRY GOODS COMPANY
as Borrower
DILLARD TENNESSEE
OPERATING LIMITED
PARTNERSHIP, as Borrower
By its General Partner
Xxxxxxx'x, Inc.
as Borrower
X.X. XXXXXX & COMPANY, INCORPORATED,
as Borrower
X.X. XXXX & COMPANY,
as Borrower
THE XXXXXXX-XXXXX DRY GOODS CO.,
as Borrower
XXXXXXX STORES SERVICES, INC., as Borrower
THE XXXXXX COMPANY,
as Borrower
THE XXXXXXX COMPANY,
as Borrower
GAYFER'S XXXXXXXXXX FAIR CO., as Borrower
THE LION DRY GOODS COMPANY,
as Borrower
X. XXXXX & SONS,
as Borrower
MERCANTILE STORES COMPANY, INC.,
as Borrower
DILLARD'S WYOMING, INC.,
as Borrower
CONSTRUCTION DEVELOPERS, INCORPORATED,
as Borrower
CONDEV NEVADA, INC.,
as Borrower
MERCANTILE KANSAS CITY, INC., as Borrower
XXXXXXXX COMPANY,
as Borrower
X.X. XXXXX & COMPANY,
as Borrower
DILLARD'S DOLLARS, INC.,
as Borrower
By: __________________________
Name: Xxxxxxxx X. Xxxx
Title: Vice President to each
Borrower listed above
U.S. ALPHA, INC.,
as Borrower
By_________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DILLARD INTERNATIONAL, INC.,
as Borrower
By_________________________
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
JPMORGAN CHASE BANK,
as Administrative Agent, as Swingline Lender, as
Issuing Bank, and as Lender
By:________________________
Name:
Title:
FLEET RETAIL GROUP, INC.,
as Collateral Agent, Syndication Agent and as Lender
By:________________________
Name: Xxxx Xxxxx
Title: Managing Director
FLEET NATIONAL BANK,
as Issuing Bank
By:________________________
Name: Xxxx Xxxxx
Title: Managing Director
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Co-Documentation Agent and as Lender
By:________________________
Name:
Title:
XXXXX FARGO FOOTHILL, LLC,
as Co-Documentation Agent and as Lender
By:________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent and as Lender
By:________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION,
as Managing Agent and as Lender
By:________________________
Name:
Title:
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as Managing Agent and as Lender
By:________________________
Name:
Title:
GMAC COMMERCIAL FINANCE LLC,
as Managing Agent and as Lender
By:________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By:________________________
Name:
Title:
UBS AG, STAMFORD BRANCH
as Lender
By:________________________
Name:
Title:
AMSOUTH BANK,
as Lender
By:________________________
Name:
Title:
REGIONS BANK,
as Lender
By:________________________
Name:
Title:
HSBC BUSINESS CREDIT (USA) INC.,
as Lender
By:________________________
Name:
Title:
SIEMENS FINANCIAL SERVICES, INC.,
as Lender
By:________________________
Name:
Title:
UPS CAPITAL CORPORATION
as Lender
By:________________________
Name:
Title:
ALLIED IRISH BANK,
as Lender
By:________________________
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK,
as Lender
By:________________________
Name:
Title:
By:________________________
Name:
Title:
BANK ONE, NA
(Main Office Chicago)
as Lender
By:________________________
Name:
Title:
FIFTH THIRD BANK,
as Lender
By:________________________
Name:
Title:
HIBERNIA NATIONAL BANK,
as Lender
By:________________________
Name:
Title:
