Exhibit 10
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment") is executed as of the third day of June, 2005, 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;
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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
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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 Second Amendment as a "Lender" (collectively, the "Lenders" and
each individually, a "Lender"); and
JPMORGAN CHASE BANK, N.A., as the Agent for the Lenders, a national banking
association, formerly known as JPMorgan Chase Bank, having a place of
business at 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000;
in consideration of the mutual covenants herein contained and benefits to
be derived herefrom.
RECITALS:
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A. The Borrowers and the Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of December 12, 2003 (as amended by that
certain First Amendment to Amended and Restated Credit Agreement dated as of May
10, 2004 by and among the Borrowers, the Lenders and the Agent and as further
amended from time to time, the "Credit Agreement"; unless otherwise defined
herein, all capitalized terms used herein which are defined in the Credit
Agreement shall have the meaning given such terms in the Credit Agreement,
including, to the extent applicable, after giving effect to this Second
Amendment), pursuant to which the Lenders provide certain financing to the
Borrowers in accordance with the terms and conditions set forth therein.
B. The Borrowers have requested that the Lenders amend certain terms of the
Credit Agreement.
C. Subject to the terms and conditions set forth herein, the Lenders have
agreed to the Borrowers' request.
AGREEMENTS:
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In consideration of the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confessed, the parties hereto hereby agree as
follows:
SECTION 1. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this Second Amendment, but subject to the
satisfaction of each condition precedent contained in Section 2 hereof, the
Credit Agreement shall be amended effective as of the date hereof in the manner
provided in this Section 1.
1.1 Amended Definitions. The definitions of "Applicable Margin", "Bank
Products", "Co-Documentation Agents", "Collateral Agent", "Commitment",
"Commitment Percentage", "Fee Letter", "Fixed Charges", "Inventory Advance
Rate", "Issuing Bank", "JPMorgan", "Lenders", "Managing Agents", "Maturity
Date", "Other Issuers", "Required Lenders", "Required Supermajority Lenders",
"Total Commitment" and "Unused Commitment" contained in Section 1.01 of the
Credit Agreement shall be amended and restated in their entirety to read in full
as follows:
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"Applicable Margin" means, on any day with respect to Base Rate Loans,
LIBOR Loans, Commercial Letters of Credit and the Commitment Fee, the applicable
per annum percentage set forth at the appropriate intersection in the table
shown below:
------------ ---------------------------- ------------ ------------ ------------------- -------------------
Level Performance Criteria Base Rate LIBOR Loans Commercial Commitment Fee
Loans Letters of Credit
------------ ---------------------------- ------------ ------------ ------------------- -------------------
1 average Excess 0% 1.25% .625% .25%
Availability greater than
$600,000,000
------------ ---------------------------- ------------ ------------ ------------------- -------------------
2 average Excess 0% 1.50% .75% .25%
Availability greater than
$400,000,000 but less than
or equal to $600,000,000
------------ ---------------------------- ------------ ------------ ------------------- -------------------
3 average Excess 0% 1.75% 1.00% .375%
Availability less than or
equal to $400,000,000
------------ ---------------------------- ------------ ------------ ------------------- -------------------
Commencing on June 3, 2005, the Applicable Margin shall be as set forth in
Level 1. The Applicable Margin shall be adjusted quarterly as of the first day
of each calendar quarter, commencing January 1, 2006, based upon the average
Excess Availability for the immediately preceding calendar quarter. Upon the
occurrence and during the continuance of an Event of Default, the Applicable
Margin shall be immediately increased to the percentages set forth in Level 3
(even if the Excess Availability requirements for another Level have been met)
and interest shall be determined in the manner set forth in Section 2.10. Prior
to June 3, 2005, the Applicable Margin shall be calculated as provided in this
Agreement prior to giving effect to the amendments to this Agreement contained
in the Second Amendment.
"Bank Products" shall mean any one or more of the following types of
services or facilities extended to any Borrower by the Agent, any Lender, or any
of their respective Affiliates: (a) credit cards, including the Borrowers'
purchase cards, (b) Hedging Agreements, (c) any deposit, lock box or other cash
management arrangement,(d) foreign exchange, or (e) any other product or service
provided by any such Person; provided that for any of the foregoing to be
included as "Bank Product" hereunder: (i) the applicable Lender (or its
Affiliate) and the Lead Borrower must have provided the Agent written notice of:
(A) the existence of such Bank Product, (B) the Lender's (or its Affiliate's)
and the Lead Borrower's agreement as to the maximum dollar amount of the
applicable Borrower's obligations arising under such Bank Product that will be
included in a reserve under the Borrowing Base (the "Bank Product Amount") and
(C) the methodology agreed upon by the applicable Lender (or its Affiliate) and
the Lead Borrower to determine the Bank Product Amount and (ii) the applicable
Borrower must otherwise be permitted to enter into such arrangement under this
Agreement or must not be restricted from entering into such arrangement under
this Agreement. The Agent shall provide the Lenders with notice of the
establishment of each Bank Product. After any of the foregoing have been
established as a Bank Product hereunder and as long as no Event of Default
exists, the Bank Product Amount may thereafter be changed by written notice to
the Agent pursuant to an agreement between the applicable Lender (or its
Affiliate) and the Lead Borrower; provided that no change in a Bank Product
Amount may cause Excess Availability to be less than zero. Notwithstanding
anything to the contrary herein, the products and services provided by GE
Capital Consumer Card Co. and its Affiliates related to the purchase, sale and
servicing of the Lead Borrower's private label credit cards shall not constitute
Bank Products.
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"Co-Documentation Agents" means General Electric Capital Corporation and
The CIT Group/Business Credit, Inc.
"Collateral Agent" means JPMorgan Chase Bank, N.A.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender which is available to be borrowed in the amount set forth opposite
its name as its Commitment on Schedule 1.1 or as may subsequently be set forth
in the Register from time to time, as the same may be reduced from time to time
pursuant to Section 2.15.
"Commitment Percentage" shall mean, with respect to each Lender, at any
time, except as otherwise provided herein, that percentage of the Commitments of
all Lenders hereunder in the amount set forth opposite its name on Schedule 1.1
or as may subsequently be set forth in the Register from time to time, as the
same may be reduced from time to time pursuant to Section 2.15.
"Fee Letter" means, collectively, (a) the letter agreement entitled "Fee
Letter" dated December 12, 2003, regarding fees, executed by the Agent and
accepted and agreed to by the Borrowers, and (b) any other agreement now or at
anytime hereafter entered into between one or more Borrower and Agent, JPMorgan
and/or any of their Affiliates providing for the payment of fees to Agent,
JPMorgan and/or any of their Affiliates in connection with this Agreement or any
transactions contemplated hereby or related thereto, as such letter agreement
and such other agreements may from time to time be amended.
"Fixed Charges" means, with respect to any fiscal period of the Lead
Borrower and its Subsidiaries on a consolidated basis, without duplication, the
sum of (a) cash Interest Expense during such fiscal period, (b) rental and all
other payments made by the Lead Borrower and its Subsidiaries in respect of or
in connection with operating leases during such fiscal period, (c) Scheduled
Payments during such fiscal period, and (d) Restricted Payments made in cash in
respect of equity interests of the Lead Borrower during such fiscal period, but
only to the extent such Restricted Payments are in excess of $30,000,000 during
any twelve month period.
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"Inventory Advance Rate" means 85%.
"Issuing Bank" means (a) JPMorgan, in its capacity as the issuer of Letters
of Credit hereunder, and any successor to JPMorgan in such capacity and (b) any
Other Issuers. Each Issuing Bank may, in its reasonable discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of such Issuing Bank,
in which case the term "Issuing Bank" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate. Each Issuing Bank shall
act commercially reasonably and otherwise in accordance with the standard of
care set forth in Section 2.06(i).
"JPMorgan" means JPMorgan Chase Bank, N.A., a national banking association
formerly known as JPMorgan Chase Bank.
"Lenders" shall mean the Persons identified on Schedule 1.1 and each
assignee that becomes a party to this Agreement as set forth in Section 9.05(b).
"Managing Agents" means National City Business Credit, Inc., GMAC
Commercial Finance LLC, SunTrust Bank, UBS AG, Stamford Branch and Citicorp USA,
Inc.
"Maturity Date" means December 12, 2010.
"Other Issuers" means each Lender, other than JPMorgan, up to a maximum of
two Lenders (in addition to JPMorgan), designated by the Lead Borrower as an
Issuing Bank through written notice to the Agent, including any replacement
thereof with another Lender; provided that if the Lead Borrower appoints Lenders
(other than JPMorgan) as Issuing Banks, the Lead Borrower shall furnish prompt
written notice thereof to the Agent.
"Required Lenders" shall mean, (a) Lenders having Commitments at least
equal to 51% of the Total Commitments, or (b) if the Commitments have been
terminated, Lenders whose percentage of the outstanding Credit Extensions (after
settlement and repayment of all Swingline Loans by the Lenders) aggregate not
less than 51% of all such Credit Extensions.
"Required Supermajority Lenders" shall mean, (a) Lenders having Commitments
outstanding representing at least 66 2/3% of the Total Commitments outstanding
or (b) if the Commitments have been terminated, Lenders whose percentage of the
outstanding Credit Extensions (after settlement and repayment of all Swingline
Loans by the Lenders) aggregate not less than 66 2/3% of all such Credit
Extensions.
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"Total Commitment" shall mean the sum of the Commitments of all the Lenders
at such time.
"Unused Commitment" shall mean, on any day, (a) the aggregate amount of the
Commitments then in effect, minus (b) the sum of (i) the principal amount of
Loans then outstanding and (ii) the then Letter of Credit Outstandings.
1.2 Additional Definitions. Section 1.01 of the Credit Agreement shall be
amended to add thereto in alphabetical order the following defined terms:
"Co-Syndication Agents" means Xxxxx Fargo Foothill, LLC and Wachovia Bank,
National Association.
"Lead Arranger" means X.X. Xxxxxx Securities Inc.
"Perishable Inventory" means Inventory that is subject to decay, spoilage,
or destruction solely due to the passage of time.
"Second Amendment" means that certain Second Amendment to Amended and
Restated Credit Agreement dated as of June 3, 2005, among the Borrowers, the
Agent and the Lenders.
1.3 Deleted Definitions. The definitions of "Closing Commitment", "Fleet",
"Incremental Commitment", "Joint Lead Arrangers", "Line Fee", "Pre-Repayment
Commitment Percentage", "Refreshing Basket", "Repayment Event" and "Syndication
Agent" contained in Section 1.01 of the Credit Agreement are hereby deleted.
1.4 Amendment to Section 2.01. Clause (a)(i) of Section 2.01 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(i) The aggregate outstanding amount of the Credit Extensions shall not at
any time exceed the lower of (A) $1,200,000,000, or, in each case, any lesser
amount to which the Total Commitment has then been reduced by the Lead Borrower
pursuant to Section 2.15, or (B) the then amount of the Borrowing Base.
1.5 Amendment to Section 2.01. Clause (c) of Section 2.01 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(c) Notwithstanding anything to the contrary herein contained, Credit
Extensions shall be made by the Lenders pro rata in accordance with their
respective Commitment Percentages.
1.6 Amendment to Section 2.03. Section 2.03 of the Credit Agreement shall
be amended to delete the references to "395 Xxxxx Xxxxxxx Xx., 0xx Xxxxx,
Xxxxxxxx, Xxx Xxxx 00000" in clause (b) thereof and to replace such reference
with "120 X. XxXxxxx Xx., Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000-0000".
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1.7 Amendment to Section 2.05. The last sentence of clause (b) of Section
2.05 of the Credit Agreement shall be amended and restated in its entirety to
read in full as follows:
Notwithstanding the foregoing, no Swingline Loans shall be made pursuant to
this subsection (b) if the aggregate outstanding amount of the Credit Extensions
(other than, with respect to clause (ii) below, Permitted Overadvances) would
exceed the lower of (i) $1,200,000,000, or, in each case, any lesser amount to
which the Total Commitment has then been reduced by the Lead Borrower pursuant
to Section 2.15, or (ii) the then amount of the Borrowing Base.
1.8 Amendment to Section 2.06. Clauses (a) and (f) of Section 2.06 of the
Credit Agreement shall be amended and restated in their entirety to read in full
as follows:
(a) Upon the terms and subject to the conditions herein set forth, the Lead
Borrower may request the Issuing Banks, at any time and from time to time after
the date hereof and prior to the Termination Date, to issue, and subject to the
terms and conditions contained herein, an Issuing Bank shall issue, for the
account of the relevant Borrower one or more Letters of Credit; provided that no
Letter of Credit shall be issued if after giving effect to such issuance (i) the
aggregate Letter of Credit Outstandings shall exceed $400,000,000, or (ii) the
aggregate Credit Extensions would exceed the limitation set forth in Section
2.01(a)(i); and provided, further, that no Letter of Credit shall be issued if
the applicable Issuing Bank shall have received notice from the Agent or the
Required Lenders that the conditions to such issuance have not been met.
(f) Immediately upon the issuance of any Letter of Credit by an Issuing
Bank (or the amendment of a Letter of Credit increasing the amount thereof), and
without any further action on the part of such Issuing Bank, such Issuing Bank
shall be deemed to have sold to each Lender, and each such Lender shall be
deemed unconditionally and irrevocably to have purchased from such Issuing Bank,
without recourse or warranty, an undivided interest and participation, to the
extent of such Lender's Commitment Percentage, in such Letter of Credit, each
drawing thereunder and the obligations of the Borrowers under this Agreement and
the other Loan Documents with respect thereto. Upon any change in the
Commitments pursuant to Section 9.05, it is hereby agreed that with respect to
all Letter of Credit Outstandings, there shall be an automatic adjustment to the
participations hereby created to reflect the new Commitment Percentages of the
assigning and assignee Lenders or the Commitment Percentages of the Lenders, as
applicable. Any action taken or omitted by an Issuing Bank under or in
connection with a Letter of Credit, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for such Issuing Bank any
resulting liability to any Lender.
1.9 Amendment to Section 2.11. Section 2.11 of the Credit Agreement shall
be amended and restated in its entirety to read in full as follows:
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SECTION 2.11 Certain Fees. The Borrowers shall pay to the Agent, JPMorgan
and their Affiliates, as applicable, for their own accounts, the fees set forth
in the Fee Letter as and when payment of such fees is due as therein set forth.
1.10 Amendment to Section 2.12. Section 2.12 of the Credit Agreement shall
be amended and restated in its entirety to read in full as follows:
SECTION 2.12 Unused Commitment Fee. The Borrowers shall pay to the Agent
for the account of the Lenders, a commitment fee (the "Commitment Fee") equal to
the Applicable Margin per annum (on the basis of actual days elapsed in a year
of 360 days) of the average daily balance of the Unused Commitment for each day
commencing on and including the Effective Date and ending on but excluding the
Termination Date. The Commitment Fee so accrued in any calendar quarter shall be
payable on the first Business Day of the immediately succeeding calendar
quarter, except that all Commitment Fees so accrued as of the Termination Date
shall be payable on the Termination Date. The Agent shall pay the Commitment Fee
to the Lenders based upon their pro rata share of the aggregate Commitment Fee
due to all Lenders; provided that for purposes of calculating the pro rata share
of any Person which is both the Swingline Lender and a Lender, such Person's
share shall be equal to the difference between (i) such Person's Commitment, and
(ii) the sum of (A) such Person's Commitment Percentage of the principal amount
of Revolving Loans then outstanding (including the principal amount of Swingline
Loans then outstanding), and (B) such Person's Commitment Percentage of the then
Letter of Credit Outstandings. Prior to June 3, 2005, the Commitment Fee shall
accrue as specified in this Agreement prior to giving effect to the Second
Amendment.
1.11 Amendment to Section 2.13. Clause (a)(ii) of Section 2.13 of the
Credit Agreement shall be amended and restated in its entirety to read in full
as follows:
(ii) Commercial Letters of Credit: At the then Applicable Margin per annum.
l.12 Amendment to Section 2.15. Section 2.15 of the Credit Agreement shall
be amended and restated in its entirety to read in full as follows:
SECTION 2.15 Termination or Reduction of Commitments.
Upon at least two Business Days' prior written notice to the Agent, the
Lead Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Commitments. Each such reduction shall be
in the principal amount of $10,000,000 or any integral multiple thereof. Each
such reduction or termination shall (i) be applied ratably to the Commitments of
each Lender and (ii) be irrevocable when given. At the effective time of each
such reduction or termination, the Borrowers shall pay to the Agent for
application as provided herein (i) all Commitment Fees accrued on the amount of
the Commitments so terminated or reduced through the date thereof, and (ii) any
amount by which the Credit Extensions outstanding on such date exceed the amount
to which the Commitments are to be reduced effective on such date, in each case
pro rata based on the amount prepaid.
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1.13 Amendment to Section 2.22. Clause (a) of Section 2.22 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(a) Subject to the provisions of Section 2.21, prior to the occurrence of
an Event of Default and acceleration of the Obligations, all amounts received in
the JPMorgan Concentration Account from any source, including the Blocked
Account Banks, shall be applied, on the day of receipt, in the following order:
first, to pay interest due and payable on Credit Extensions and to pay fees and
expense reimbursements and indemnification then due and payable to the Agent,
X.X. Xxxxxx Securities Inc., the Issuing Banks, and the Lenders; second to repay
outstanding Swingline Loans; third, pro rata, to repay (x) other outstanding
Loans, (y) all outstanding reimbursement obligations under Letters of Credit and
(z) outstanding obligations with respect to Bank Products in an amount not to
exceed $25,000,000; provided that outstanding Base Rate Loans shall be repaid
before outstanding LIBOR Loans are repaid; and further provided that payments to
repay outstanding LIBOR Loans (i) shall be accompanied by the payment of all
Breakage Costs due in respect of such repayment pursuant to Section 2.19(b) or,
(ii) at the Lead Borrower's option, shall rather fund a cash collateral deposit
to the Cash Collateral Account sufficient to pay, and with direction to pay, all
such outstanding LIBOR Loans on the last day of the then-pending Interest Period
therefor; fourth, to pay all other Obligations (excluding outstanding
obligations with respect to Bank Products that were not otherwise repaid under
the "third" step set forth above) that are then outstanding and then due and
payable (it being understood that undrawn Letters of Credit shall not be
required to be cash collateralized if no Event of Default has occurred and is
continuing); fifth, to pay outstanding obligations with respect to Bank Products
that were not otherwise repaid under the "third" step set forth above. If all
amounts set forth in clauses first through and including fifth above are paid,
any excess amounts shall be deposited in a separate cash collateral account, and
shall promptly be released to the Borrowers upon the request of the Lead
Borrower. Any other amounts received by the Agent, the Issuing Bank, or any
Lender as contemplated by Section 2.21 shall also be applied in the order set
forth above in this Section 2.22.
1.14 Amendment to Section 2.25. The third sentence of Section 2.25(a) of
the Credit Agreement shall be amended and restated in its entirety to read in
full as follows:
All such payments shall be made to the Agent at its offices at 000 X.
XxXxxxx Xx., Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000-0000, except payments to be made
directly to an Issuing Bank or Swingline Lender as expressly provided herein and
except that payments pursuant to Sections 2.19(b), 2.23, 2.26 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the Persons specified therein.
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1.15 Amendment to Section 3.16. Clause (b) of Section 3.16 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to buy or carry Margin Stock in violation of, or in a manner
that is inconsistent with, the provisions of applicable law and the regulations
of the Board, including Regulation U or X, (ii) to extend credit to others for
the purpose of buying or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose or (iii) for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the regulations of
the Board, including Regulation U or X.
1.16 Amendment to Section 6.01. Section 6.01 of the Credit Agreement shall
be amended to (a) delete the references to "$50,000,000" in clauses (iv) and
(viii) thereof and to replace such references with "$100,000,000", (b) delete
the period at the end of clause (viii) and replace it with "; and", (c) delete
the references to "Borrower" in clauses (iv) and (v) thereof and replacing such
references with "Subsidiary Borrower", and (d) to insert a new clause (ix) to
read in full as follows:
(ix) Indebtedness owing under or in connection with the Letters of Credit
issued by Fleet National Bank and listed on Exhibit A to the Second Amendment,
until each such Letter of Credit expires or is terminated.
1.17 Amendment to Section 6.02. Section 6.02 of the Credit Agreement shall
be amended (a) to delete the reference to "Borrowers" in clause (v) thereto and
replace such reference with "Subsidiary Borrowers", (b) to delete the period at
the end of clause (v) and replace such period with "; and", and (c) to insert a
new clause (vi) to read in full as follows:
(vi) Liens solely on cash and cash equivalent investments in favor of Fleet
National Bank securing Indebtedness owing under or in connection with the
Letters of Credit issued by Fleet National Bank and listed on Exhibit A to the
Second Amendment, but only to the extent the amount of cash and cash equivalents
is not in excess of the aggregate full face amount of each such Letter of
Credit, until each such Letter of Credit expires or is terminated.
1.18 Amendment to Section 6.04. Section 6.04 of the Credit Agreement shall
be amended to delete the reference to "$25,000,000" in clause (g)(i) thereof and
to replace such reference with "$50,000,000".
1.19 Amendment to Section 6.06. Clause (a) of Section 6.06 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(a) The Borrowers will not declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except:
(i) the Borrowers may declare and pay dividends with respect to their
capital stock in cash or in additional shares of their common stock so long as
no Specified Event of Default exists or would arise therefrom; and
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(ii) the Lead Borrower may repurchase equity interests in the
Lead Borrower (a "Repurchase") as long as (A) no Default or Event of Default
then exists or, after giving effect to such Repurchase, would arise; and (B)
during the ninety (90) day period prior (on a pro forma basis) to the date of
such Repurchase, and for the ninety (90) day period following (on a projected
basis) the date of such Repurchase, there shall be average Excess Availability
of at least $250,000,000.
1.20 Amendment to Section 6.06. Clause (b)(iii) of Section 6.06 of the
Credit Agreement shall be amended and restated in its entirety to read in full
as follows:
(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 average Excess Availability
of at least $250,000,000.
1.21 Amendment to Section 8.05. The last sentence of Section 8.05 of the
Credit Agreement shall be deleted in its entirety.
1.22 Amendment to Section 8.11. Section 8.11 of the Credit Agreement shall
be amended and restated in its entirety to read in full as follows:
SECTION 8.11 Co-Syndication Agents, Collateral Agent, Co-Documentation
Agents, Managing Agents, and Lead Arranger. Notwithstanding the provisions of
this Agreement or any of the other Loan Documents, the Co-Syndication Agents,
the Collateral Agent, the Co-Documentation Agents, the Managing Agents, and the
Lead Arranger shall have no powers, rights, duties, responsibilities or
liabilities with respect to this Agreement and the other Loan Documents.
1.23 Amendment to Section 9.01. Clause (b) of Section 9.01 of the Credit
Agreement shall be amended and restated in its entirety to read in full as
follows:
(b) if to the Agent or the Swingline Lender to JPMorgan Chase Bank, N.A.,
0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention of Xxxxxxxx Jeans
(Telecopy No. (000) 000-0000), with a copy to Xxxxxx & Xxxxxx L.L.P., Xxxxxxxx
Xxxx Center, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention:
Xxxxxxx X. Xxxxx (Telecopy No. (000) 000-0000);
1.24 Amendment to Section 9.02. Clauses (b)(i) and (b)(xi) of Section 9.02
of the Credit Agreement shall be amended and restated in their entirety to read
in full as follows:
12
(i) increase (A) the Commitment of any Lender without the written consent
of such Lender or (B) the Total Commitments without the written consent of the
Agent and the Required Lenders,
(xi) modify the provisions of Section 2.01 without the prior written
consent of each Lender, and provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Agent or the Issuing
Banks without the prior written consent of the Agent or the Issuing Banks, as
the case may be.
1.25 Amendment to Section 9.03. The last sentence of clause (c) of Section
9.03 of the Credit Agreement shall be deleted in its entirety.
1.26 Amendment to Section 9.05. Clause (b)(iv) of Section 9.05 of the
Credit Agreement shall be deleted and clause (b)(v) shall be renumbered as
clause (iv).
1.27 Amendment to Article IX. Section 9.17 is hereby added to Article IX of
the Credit Agreement to read in full as follows:
SECTION 9.17 USA Patriot Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrowers that pursuant
to the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
to identify the Borrowers in accordance with the Act.
1.28 Amendment of Schedule 1.1. Schedule 1.1 of the Credit Agreement shall
be amended and restated in its entirety as set forth on Exhibit B hereto.
1.29 Omnibus Amendments. Each and every reference to (a) "Joint Lead
Arrangers" set forth in the Loan Documents shall be replaced with "Lead
Arranger", and (b) "Syndication Agent" set forth in the Loan Documents shall be
replaced with "Co-Syndication Agents".
SECTION 2. Conditions Precedent. The effectiveness of the amendments to the
Credit Agreement contained in Section 1 hereof is subject to the satisfaction of
each of the following conditions precedent:
2.1 Amendment Fees and Expenses. The Lead Borrower and the other Borrowers
shall have paid (a) all fees owed to the Agent, its Affiliates and any Lenders
in connection with the execution of this Amendment, and (b) all fees and
expenses of the Agent and its Affiliates in connection with the preparation,
negotiation and execution of this Second Amendment, including, without
limitation, the reasonable fees and expenses of Xxxxxx & Xxxxxx L.L.P., counsel
to the Agent.
2.2 Officers' Certificates, Opinions, etc. The Borrowers shall have
delivered to the Agent (a) such certificates of authorized officers of the
Borrowers, certificates of Governmental Authorities, resolutions of the boards
of directors (or other appropriate bodies) of the Borrowers and such other
documents, instruments and agreements as the Agent shall require to evidence the
valid corporate existence and authority to conduct business of the Borrowers and
the due authorization, execution and delivery of this Second Amendment, any
documents related to this Second Amendment and any other legal matters relating
to the Borrowers or the other Financing Documents entered into by the Borrowers,
all in form and substance satisfactory to the Agent and its counsel, and (b) an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, legal counsel to the Borrowers, with
respect to the due authorization, execution, delivery and enforceability of this
Second Amendment and such other matters related thereto as the Agent shall
reasonably require.
13
2.3 Notes. The Borrowers have executed and delivered to the Agent, on
behalf of each Lender whose Commitment will increase upon the effectiveness of
the amendments contained in this Second Amendment, new Notes in the principal
amount of the each such Lender's Commitment (after giving effect to the
amendments contained in this Second Amendment).
2.4 Documentation. The Agent shall have received such other documents and
instruments as it or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Agent and its counsel.
2.5 No Defaults. No Default or Event of Default shall exist.
SECTION 3. Representations and Warranties. In order to induce the Agent and
each Lender to enter into this Second Amendment, the Borrowers hereby jointly
and severally represent and warrant to the Agent and each Lender that:
3.1 Accuracy of Representations and Warranties. Each of the representations
and warranties of each Borrower contained in the Loan Documents is true and
correct in all material respects as of the date hereof (except to the extent
that such representations and warranties are expressly made as of a particular
date, in which event such representations and warranties were true and correct
as of such date).
3.2 Due Authorization, No Conflicts. The execution, delivery and
performance by the Borrowers of this Second Amendment, and all other documents,
instruments or agreements executed by any of the Borrowers in connection with
this Second Amendment, are within the Borrowers' corporate or limited
partnership powers, as applicable, have been duly authorized by all necessary
corporate or limited partnership action, require no action by or in respect of,
or filing with, any governmental body, agency or official and do not violate or
constitute a default under any provision of applicable law or any material
agreement binding upon the Borrowers or their Subsidiaries, or result in the
creation or imposition of any Lien upon any of the assets of the Borrowers or
their Subsidiaries.
3.3 Validity and Binding Effect. This Second Amendment and all other
documents, instruments or agreements executed by any of the Borrowers in
connection with this Second Amendment constitute the valid and binding
obligations of the applicable Borrowers enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
and the availability of equitable remedies may be limited by equitable
principles of general application.
14
3.4 Absence of Defaults. Neither a Default nor an Event of Default has
occurred which is continuing.
SECTION 4. Miscellaneous.
4.1 Reaffirmation of Loan Documents; Extension of Liens. Any and all of the
terms and provisions of the Credit Agreement and the other Loan Documents shall,
except as amended and modified hereby, remain in full force and effect. Each
Borrower hereby extends each Lien granted by such Borrower to secure the
Obligations until the Obligations have been paid in full, and agree that the
amendments herein contained shall in no manner affect or impair the Obligations
or the Liens securing payment and performance thereof, all of which are ratified
and confirmed.
4.2 Parties in Interest. All of the terms and provisions of this Second
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.3 Loan Document. This Second Amendment is a Loan Document for all
purposes of the Credit Agreement and the other Loan Documents.
4.4 Counterparts, Effectiveness of Second Amendment. This Second Amendment
may be executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this Second Amendment until
this Second Amendment has been executed by the Agent, each Borrower and all
Lenders, at which time this Second Amendment shall be binding on, enforceable
against and inure to the benefit of the Borrowers, the Agent and all Lenders.
Facsimiles shall be effective as originals.
4.5 COMPLETE AGREEMENT. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
4.6 Headings. The headings, captions and arrangements used in this Second
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Second Amendment, nor
affect the meaning thereof.
4.7 No Implied Waivers. No failure or delay on the part of the Lenders or
the Agent in exercising, and no course of dealing with respect to, any right,
power or privilege under this Second Amendment, the Credit Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this Second Amendment,
the Credit Agreement or any other Loan Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
15
4.8 Review and Construction of Documents. The Borrowers hereby acknowledge,
and represent and warrant to the Lenders that (a) the Borrowers have had the
opportunity to consult with legal counsel of their own choice and have been
afforded an opportunity to review this Second Amendment with their legal
counsel, (b) the Borrowers have reviewed this Second Amendment and fully
understand the effects thereof and all terms and provisions contained herein,
(c) the Borrowers have executed this Second Amendment of their own free will and
volition, and (d) this Second Amendment shall be construed as if jointly drafted
by the Borrowers and the Lenders. The recitals contained in this Second
Amendment shall be construed to be part of the operative terms and provisions of
this Second Amendment.
4.9 Interpretation. Wherever the context hereof shall so require, the
singular shall include the plural, the masculine gender shall include the
feminine gender and the neuter and vice versa.
4.10 Severability. In case any one or more of the provisions contained in
this Second Amendment shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Second Amendment shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
4.11 Further Assurances. The Borrowers agree to execute, acknowledge,
deliver, file and record such further certificates, instruments and documents,
and to do all other acts and things, as may be requested by the Lenders or the
Agent as necessary or advisable to carry out the intents and purposes of this
Second Amendment.
4.12 Governing Law. This Second Amendment and the rights and obligations of
the parties hereunder shall be construed in accordance with and be governed by
the laws of the State of New York and, and to the extent controlling, laws of
the United States of America.
[Signature Page Follows]
16
Signature Page
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the day and year first above written.
XXXXXXX'X, INC.,
as the Lead Borrower and a Borrower
XXXXXXX TEXAS OPERATING LIMITED PARTNERSHIP,
By its General Partner, Xxxxxxx'x, Inc., as Borrower
THE XXXXXX DRY GOODS COMPANY,
as a Borrower
DILLARD TENNESSEE OPERATING LIMITED PARTNERSHIP, as a
Borrower
By its General Partner, Xxxxxxx'x, Inc.
X.X. XXXXXX & COMPANY, INCORPORATED,
as a Borrower
X.X. XXXX & COMPANY,
as a Borrower
THE XXXXXXX-XXXXX DRY GOODS CO.,
as a Borrower
XXXXXXX STORES SERVICES, INC., as a Borrower
THE XXXXXX COMPANY,
as a Borrower
THE XXXXXXX COMPANY,
as a Borrower
GAYFER'S XXXXXXXXXX FAIR CO., as a Borrower
THE LION DRY GOODS COMPANY,
as a Borrower
X. XXXXX & SONS,
as a Borrower
MERCANTILE STORES COMPANY, INC.,
as a Borrower
DILLARD'S WYOMING, INC.,
as a Borrower
CONSTRUCTION DEVELOPERS, INCORPORATED,
as a Borrower
CONDEV NEVADA, INC.,
as a Borrower
MERCANTILE KANSAS CITY, INC., as a Borrower
XXXXXXXX COMPANY,
as a Borrower
X.X. XXXXX & COMPANY,
as a Borrower
DILLARD'S DOLLARS, INC.,
as a Borrower
By: __________________________
Name:_________________________
Xxxxxxxx X. Xxxx
Title: Vice President to each Borrower listed above
U.S. ALPHA, INC.,
as a Borrower
By_________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DILLARD INTERNATIONAL, INC.,
as a Borrower
By_________________________
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
JPMORGAN CHASE BANK, N.A.
as the Agent, as Swingline Lender, as Issuing Bank,
and as a Lender
By_________________________
Name:______________________
Xxxxxxxx Jeans
Title:Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By:________________________
Name:______________________
Title:_______________________
XXXXX FARGO FOOTHILL, LLC,
as a Lender
By:________________________
Name:______________________
Title:_______________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:________________________
Name:______________________
Title:_______________________
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
(formerly known as Congress Financial Corporation)
By:________________________
Name:______________________
Title:_______________________
NATIONAL CITY BUSINESS CREDIT, INC.,
as a Lender
(formerly known as National City Commercial Finance,
Inc.)
By:________________________
Name:______________________
Title:_______________________
GMAC COMMERCIAL FINANCE LLC,
as a Lender
By:________________________
Name:______________________
Title:_______________________
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:________________________
Name:______________________
Title:_______________________
UBS AG, STAMFORD BRANCH
as a Lender
By:________________________
Name:______________________
Title:_______________________
AMSOUTH BANK,
as a Lender
By:________________________
Name:______________________
Title:_______________________
REGIONS BANK,
as a Lender
By:________________________
Name:______________________
Title:_______________________
HSBC BUSINESS CREDIT (USA) INC.,
as a Lender
By:________________________
Name:______________________
Title:_______________________
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
By:________________________
Name:______________________
Title:_______________________
UPS CAPITAL CORPORATION
as a Lender
By:________________________
Name:______________________
Title:_______________________
ALLIED IRISH BANK,
as a Lender
By:________________________
Name:______________________
Title:_______________________
ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
By:________________________
Name:______________________
Title:_______________________
By:________________________
Name:______________________
Title:_______________________
SUNTRUST BANK,
as a Lender
By:________________________
Name:______________________
Title:_______________________
CITICORP USA, INC.,
as a Lender
By:________________________
Name:______________________
Title:_______________________
NORTH FORK BUSINESS CAPITAL CORP.,
as a Lender
By:________________________
Name:______________________
Title:_______________________
Exhibit A
---------
Outstanding Letters of Credit with Fleet National Bank
Customer Ref L/C Number Beneficiary Name Issue Date Expiry Date Outstanding Amount in
USD
-----------------------------------------------------------------------------------------------------------------------------------
0000064055051 64055051 TEXTIL SAN XXXXXXXXX 18 Feb 2005 21 May 2005 6,566.40
0000064055061 64055061 XX XXXXXXXX INTERNATIONAL CORP. 01 Apr 2005 22 May 2005 90.00
0000064054801 64054801 XXXXX GARMENTS 14 Mar 2005 04 Jun 2005 199,594.13
0000064055046 64055046 APOGEE FINE CREATIONS, INC 08 Feb 2005 13 Jun 2005 339,324.95
0000064055058 64055058 NINGBO YOUNGOR IMP AND EXP. 29 Mar 2005 15 Jun 2005 6,549.12
0000064055053 64055053 TEXTIL XXX XXXXXXXXX 00 Xxx 0000 00 Jun 2005 7,354.80
0000064055059 64055059 XX XXXXXXXX INTERNATIONAL CORP. 29 Mar 2005 21 Jun 2005 11,130.00
0000064055063 64055063 XXXXX GARMENTS 04 Apr 2005 06 Jul 2005 729,002.42
0000064055045 64055045 EPOCH GARMENTS 14 Feb 2005 08 Jul 2005 636,272.14
0000064055069 64055069 EPOCH GARMENTS 25 Apr 2005 08 Jul 2005 308,514.83
0000064055065 64055065 TEX-STYLES INTERNATIONAL 11 Apr 2005 27 Jul 2005 66,837.54
0000064055066 64055066 TEX-STYLES INTERNATIONAL 14 Apr 2005 27 Jul 2005 233.10
0000064055067 64055067 TEX-STYLES INTERNATIONAL 15 Apr 2005 27 Jul 2005 1,254.86
0000064055049 64055049 APOGEE FINE CREATIONS, INC 16 Feb 2005 30 Jul 2005 307,342.72
0000064055072 64055072 XXXXX GARMENTS 03 May 2005 03 Aug 2005 440,357.19
0000001319812 01319812 AIRLINE REPORTING CORPORATION STANDBY 09 Aug 2002 03 Aug 2005 70,000.00
0000064054807 64054807 GLORY INDUSTRIES LTD 16 Mar 2005 05 Aug 2005 78,825.60
0000064055052 64055052 EPOCH GARMENTS 28 Feb 2005 05 Aug 2005 153,065.05
0000064055055 64055055 EPOCH GARMENTS 11 Mar 2005 05 Aug 2005 144,273.65
0000064055075 64055075 TAKSON GARMENT MFG CO. 10 May 2005 09 Aug 2005 340,240.64
0000064055076 64055076 TEXTIL SAN XXXXXXXXX 10 May 2005 10 Aug 2005 258,095.88
0000064055071 64055071 TEX-STYLES INTERNATIONAL 04 May 2005 14 Aug 2005 93,613.38
0000064055057 64055057 GLORY INDUSTRIES LTD 30 Mar 2005 30 Aug 2005 21,829.50
0000064055060 64055060 GLORY INDUSTRIES LTD 04 Apr 2005 30 Aug 2005 280,337.40
0000064055068 64055068 GLORY INDUSTRIES LTD 25 Apr 2005 30 Aug 2005 474,147.73
0000064055064 64055064 GLORY INDUSTRIES LTD 07 Apr 2005 07 Sep 2005 199,760.93
0000064055070 64055070 GLORY INDUSTRIES LTD 28 Apr 2005 07 Sep 2005 185,874.72
0000064055062 64055062 CAMBRIDGE MEMBERS CO., LTD 06 Apr 2005 11 Sep 2005 1,061,865.04
0000064055074 64055074 GLORY INDUSTRIES LTD 04 May 2005 30 Sep 2005 227,315.09
0000064055073 64055073 GLORY INDUSTRIES LTD 06 May 2005 01 Oct 2005 517,831.46
0000001319804 01319804 TOWN OF COLLIERVILLE STANDBY 06 Oct 2004 05 Oct 2005 100,000.00
0000001319814 01319814 OHIO BUREAU OF WORKERS COMP STANDBY 31 Oct 2003 31 Oct 2005 705,000.00
-----------------------
Grand Total: 7,972,500.27
=======================
A-1
Exhibit B
---------
Schedule 1.1 - Commitments
Lender Commitment Commitment Percentage
----------------------------------------------------- ----------------------- ---------------------
XX Xxxxxx Xxxxx Bank, N.A. $200,000,000 16.6666667%
----------------------------------------------------- ----------------------- --------------------
General Electric Capital Corporation $150,000,000 12.50%
----------------------------------------------------- ----------------------- --------------------
The CIT Group/Business Credit, Inc $130,000,000 10.8333333%
----------------------------------------------------- ----------------------- --------------------
Wachovia Bank, National Association $125,000,000 10.4166667%
----------------------------------------------------- ----------------------- --------------------
Xxxxx Fargo Foothill, LLC $100,000,000 8.3333333%
----------------------------------------------------- ----------------------- --------------------
National City Business Credit, Inc. $50,000,000 4.1666667%
----------------------------------------------------- ----------------------- --------------------
GMAC Commercial Finance LLC $50,000,000 4.1666667%
----------------------------------------------------- ----------------------- --------------------
SunTrust Bank $50,000,000 4.1666667%
----------------------------------------------------- ----------------------- --------------------
UBS AG, Stamford Branch $50,000,000 4.1666667%
----------------------------------------------------- ----------------------- --------------------
Citicorp USA, Inc. $50,000,000 4.1666667%
----------------------------------------------------- ----------------------- --------------------
North Fork Business Capital Corp. $40,000,000 3.3333333%
----------------------------------------------------- ----------------------- --------------------
PNC Bank, National Association $35,000,000 2.9166667%
----------------------------------------------------- ----------------------- --------------------
AmSouth Bank $35,000,000 2.9166667%
----------------------------------------------------- ----------------------- --------------------
HSBC Business Credit (USA) Inc. $35,000,000 2.9166667%
----------------------------------------------------- ----------------------- --------------------
Regions Bank $25,000,000 2.0833333%
----------------------------------------------------- ----------------------- --------------------
Siemens Financial Services, Inc. $20,000,000 1.6666666%
----------------------------------------------------- ----------------------- --------------------
UPS Capital Corporation $20,000,000 1.6666666%
----------------------------------------------------- ----------------------- --------------------
Israel Discount Bank Of New York $20,000,000 1.6666666%
----------------------------------------------------- ----------------------- --------------------
Allied Irish Bank $15,000,000 1.25%
----------------------------------------------------- ----------------------- --------------------
Total $1,200,000,000.00 100.0000000%
----------------------------------------------------- ----------------------- --------------------
B-1
