Exhibit 10.1
Conformed Copy
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Fifth
Amendment") is executed as of the 3rd day of May, 2007, by and among
DILLARD'S, INC., a corporation organized under the laws of the State of
Delaware having a place of business at 1600 Cantrell Road, Little Rock,
Arkansas 72201, as Lead Borrower for the Borrowers, being
said DILLARD'S, INC.,
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP, a limited partnership
organized under the laws of the State of Texas having a place of
business at 4501 North Beach Street, Fort Worth, Texas 76137;
DILLARD TENNESSEE OPERATING LIMITED PARTNERSHIP, a limited partnership
organized under the laws of the State of Tennessee having a place of
business at 7624 Highway 70 S., Nashville, Tennessee 37221;
DILLARD STORE SERVICES, INC., a corporation organized under the laws
of the State of Arizona having a place of business at 396 N. William
Dillard Drive, Gilbert, Arizona 85233;
THE HIGBEE COMPANY, a corporation organized under the laws of the
State of Delaware having a place of business at 26500 Cedar Road,
Beachwood, Ohio 44122;
GAYFER'S MONTGOMERY FAIR CO., a corporation organized under the laws
of the State of Delaware having a place of business at 1600 Cantrell
Road, Little Rock, Arkansas 72201;
CONSTRUCTION DEVELOPERS, INCORPORATED, a corporation organized under
the laws of the State of Arkansas having a place of business at 1600
Cantrell Road, Little Rock, Arkansas 72201;
DILLARD INTERNATIONAL, INC., a corporation organized under the laws of
the State of Nevada having a place of business at 3200 Las Vegas
Boulevard S., Las Vegas, Nevada 89109
CONDEV NEVADA, INC., a corporation organized under the laws of the
State of Nevada having a place of business at 1600 Cantrell Road,
Little Rock, Arkansas 72201;
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U.S. ALPHA, INC., a corporation organized under the laws of the State
of Nevada having a place of business at 6191 S. State, Murray, Utah
84107; and
DILLARD'S DOLLARS, INC., a corporation organized under the laws of the
State of Arkansas having a place of business at 1600 Cantrell Road,
Little Rock, Arkansas 72201; and
the financial institutions and other entities identified on the signature pages
to this Fifth 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 2200 Ross Avenue, 6th Floor, Dallas, Texas 75201;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
RECITALS:
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; that certain
Second Amendment to Amended and Restated Credit Agreement dated June 3, 2005 by
and among the Borrowers, the Lenders and the Agent; that certain Third Amendment
to Amended and Restated Credit Agreement dated January 25, 2006; that certain
Fourth Amendment to Amended and Restated Credit Agreement dated as of June 9,
2006 by and among the Borrowers, the Lenders and the Agent (the "Fourth
Amendment"), 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 Fifth Amendment), pursuant to which the Lenders provide certain financing
to the Borrowers in accordance with the terms and conditions set forth therein.
B. Lead Borrower has undergone a restructuring since the Fourth Amendment,
whereby the following occurred:
(i) J.B. Ivey & Company, a North Carolina corporation, merged with and
into The Higbee Company;
(ii) Dillard's Wyoming, Inc., a Wyoming corporation, merged with and into
Construction Developers, Incorporated;
(iii) Mercantile Operations, Inc., a Delaware corporation, merged with and
into The Higbee Company.
C. The Borrowers have requested that the Lenders amend certain terms of the
Credit Agreement.
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D. Subject to the terms and conditions set forth herein, the Lenders have
agreed to the Borrowers' request.
AGREEMENTS:
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 Fifth 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 "LIBOR Rate" and "Maturity
Date" contained in Section 1.01 of the Credit Agreement shall be amended and
restated in their entirety to read in full as follows:
"LIBOR Rate" means, with respect to any LIBOR Borrowing for any Interest
Period. The rate of interest (rounded upwards, if necessary to the next
1/16 of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor
page) as the London interbank offered rate per annum at which deposits in
dollars are offered to JPMorgan by banks in the London interbank market at
11:00 a.m. (London time) not less than two Business Days before the first
day of the Interest Period for the subject LIBOR Borrowing, for a deposit
approximately in the amount of the subject Borrowing and for a period of
time approximately equal to such Interest Period.
"Maturity Date" means December 12, 2012.
1.2 Amendment to Section 2.05. Clause (a) of Section 2.05 of the Credit
Agreement shall be amended to delete the reference to "$50,000,000" and replace
such reference with a reference to "$100,000,000".
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 Fifth Amendment, and (b) all
fees and expenses of the Agent and its Affiliates in connection with the
preparation, negotiation and execution of this Fifth Amendment, including,
without limitation, the reasonable fees and expenses of Vinson & Elkins L.L.P.,
counsel to the Agent.
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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 Fifth Amendment, any
documents related to this Fifth 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 Simpson Thacher & Bartlett LLP, legal counsel to the Borrowers, with
respect to the due authorization, execution, delivery and enforceability of this
Fifth Amendment and such other matters related thereto as the Agent shall
reasonably require.
2.3 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.
2.4 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 Fifth 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 Fifth Amendment, and all other documents,
instruments or agreements executed by any of the Borrowers in connection with
this Fifth 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 Fifth Amendment and all other
documents, instruments or agreements executed by any of the Borrowers in
connection with this Fifth 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.
3.4 Absence of Defaults. Neither a Default nor an Event of Default has
occurred which is continuing.
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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 Fifth
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.3 Loan Document. This Fifth Amendment is a Loan Document for all
purposes of the Credit Agreement and the other Loan Documents.
4.4 Counterparts, Effectiveness of Fifth Amendment. This Fifth Amendment
may be executed in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this Fifth Amendment until this
Fifth Amendment has been executed by the Agent, each Borrower and all Lenders,
at which time this Fifth 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 FIFTH 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 Fifth
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Fifth 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 Fifth 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 Fifth 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.
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 Fifth Amendment with their
legal counsel, (b) the Borrowers have reviewed this Fifth Amendment and fully
understand the effects thereof and all terms and provisions contained herein,
(c) the Borrowers have executed this Fifth Amendment of their own free will and
volition, and (d) this Fifth Amendment shall be construed as if jointly drafted
by the Borrowers and the Lenders. The recitals contained in this Fifth Amendment
shall be construed to be part of the operative terms and provisions of this
Fifth Amendment.
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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 Fifth 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 Fifth 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
Fifth Amendment.
4.12 Governing Law. This Fifth 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]
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Signature Page to Fifth Amendment to Amended and Restated Credit
Agreement IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment as of the day and year first above written.
DILLARD'S, INC.,
as the Lead Borrower and a Borrower
DILLARD TEXAS OPERATING LIMITED PARTNERSHIP
By: its General Partner, Construction
Developers, Incorporated, as a Borrower
DILLARD TENNESSEE OPERATING LIMITED PARTNERSHIP
By: its General Partner, Construction
Developers, Incorporated, as a Borrower
DILLARD STORES SERVICES, INC.,
as a Borrower
THE HIGBEE COMPANY,
as a Borrower
GAYFER'S MONTGOMERY FAIR CO.,
as a Borrower
CONSTRUCTION DEVELOPERS, INCORPORATED,
as a Borrower
CONDEV NEVADA, INC.,
as a Borrower
DILLARD'S DOLLARS, INC.,
as a Borrower
By: /s/ Sherrill E. Wise
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Name: Sherrill E. Wise
Title: Vice President to each Borrower listed
above
U.S. ALPHA, INC., as a Borrower
By: /s/ James I. Freeman
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Name: James I. Freeman
Title: Vice President
DILLARD INTERNATIONAL, INC.
as a Borrower
By: /s/ James I. Freeman
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Name: James I. Freeman
Title: Chief Executive Officer
JPMORGAN CHASE BANK, N.A.
as the Agent, as Swingline Lender, as Issuing
Bank, and as a Lender
By: /s/ Courtney Jeans
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Name: Courtney Jeans
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Matthew DeFranco
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Name: Matthew DeFranco
Title: Assistant Vice President
WELLS FARGO FOOTHILL, LLC,
as a Lender
By: /s/ Maged Ghebrial
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Name: Maghed Ghebrial
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Rebecca A. Ford
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Name: Rebecca A. Ford
Title: Duly Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
(formerly known as Congress Financial
Corporation)
By: /s/ Joe Curdy
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Name: Joe Curdy
Title: Director
NATIONAL CITY BUSINESS CREDIT, INC.,
as a Lender
(formerly known as National City Commercial
Finance, Inc.)
By: /s/ Joseph Kwasny
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Name: Joseph Kwasny
Title: Director
GMAC COMMERCIAL FINANCE LLC,
as a Lender
By: /s/ George Kwong
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Name: George Kwong
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Kay Murphy
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Name: Kay Murphy
Title: Relationship Manager
UBS AG, STAMFORD BRANCH
as a Lender
By: /s/ Mary E. Evans
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Name: Mary E. Evans
Title: Associate Director
By: /s/ Irja R. Otsa
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Name: Irja R. Otsa
Title: Associate Director
AMSOUTH BANK,
as a Lender
By: /s/ Brian L. Tornow
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Name: Brian L. Tornow
Title: Senior Vice President
REGIONS BANK,
as a Lender
By: /s/ Brian L. Tornow
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Name: Brian L. Tornow
Title: Senior Vice President
HSBC BUSINESS CREDIT (USA) INC.,
as a Lender
By: /s/ Adam Moskowitz
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Name: Adam Moskowitz
Title: First Vice President
UPS CAPITAL CORPORATION
as a Lender
By: /s/ John P. Holloway
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Name: John P. Holloway
Title: Director of Portfolio Management
SUNTRUST BANK,
as a Lender
By: /s/ Mark Pickering
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Name: Mark Pickering
Title: Director
CITICORP USA, INC.,
as a Lender
By: /s/ Keith R. Gerding
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Name: Keith R. Gerding
Title: Director and Vice President
NORTH FORK BUSINESS CAPITAL CORP.,
as a Lender
By: /s/ Ron Walker
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Name: Ron Walker
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
By: /s/ Ronald Bongiovanni
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Name: Ronald Bongiovanni
Title: Senior Vice President - 1
By: /s/ Howard Weinberg
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Name: Howard Weinberg
Title: Senior Vice President - 1