Exhibit 10
April 22, 2009
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Dillard’s, Inc. and
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the
other Borrowers noted below
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1600 Cantrell
Road
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Little Rock,
Arkansas 72201
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Attention:
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Sherrill
Wise
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Treasurer
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Re: Sixth Amendment to Amended
and Restated Credit Agreement (the “ Sixth Amendment
”)
Ladies and Gentlemen:
Reference is made to the Amended and
Restated Credit Agreement dated as of December 12, 2003 (as
amended, the “ Credit Agreement ”), among
Dillards, Inc., a Delaware corporation (individually and as the
Lead Borrower); Dillard Tennessee Operating Limited Partnership, a
Tennessee limited partnership; Dillard Store Services, Inc., an
Arizona corporation; The Higbee Company, a Delaware corporation
(successor by merger to Gayfer’s Montgomery Fair Co.);
Construction Developers, Incorporated, an Arkansas corporation;
Dillard’s Texas, LLC, a Texas corporation (formerly Dillard
Texas Operating Limited Partnership); Dillard International, Inc.,
a Nevada corporation; Condev Nevada, Inc., a Nevada corporation;
U.S. Alpha, Inc., a Nevada corporation; and Dillard’s
Dollars, Inc., an Arkansas corporation (collectively, the “
Borrowers ”), the lenders party thereto (the “
Lenders ”) and JPMorgan Chase Bank, N.A., as
administrative agent for the lenders (the “ Agent
”). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 2.06(a) of
the Credit Agreement, total Letter of Credit Outstandings shall not
exceed $400,000,000. The Borrowers, the Agent, the Issuing Banks
and the Lenders desire to further delineate the LC Sublimit between
the amount of standby letters of credit and commercial letters of
credit. Accordingly, as of the date hereof, 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
to amend the Credit Agreement as follows:
(i) The following new terms are
added to Section 1.01 of the Credit Agreement in the
appropriate alphabetical order:
“Commercial Letter of Credit
Outstandings” means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding commercial Letters of
Credit at such time plus (b) the aggregate amount of all LC
Disbursements relating to commercial Letters of Credit that have
not yet been reimbursed by or on behalf of the Borrowers at such
time. The Commercial Letter of Credit Outstandings of any Revolving
Lender at any time shall be its Commitment Percentage of the total
Commercial Letter of Credit Outstandings at such time.
“Standby Letter of Credit
Outstandings” means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding standby Letters of
Credit at such time plus (b) the aggregate amount of all LC
Disbursements relating to standby Letters of Credit that have not
yet been reimbursed by or on behalf of the Borrowers at such time.
The Standby Letter of Credit Outstandings of any Revolving Lender
at any time shall be its Commitment Percentage of the total Standby
Letter of Credit Outstandings at such time.
(ii) The term Letter of Credit
Outstandings contained in Section 1.01 is hereby deleted in
its entirety and replaced with the following term:
“Letter of Credit
Outstandings” means the sum of Commercial Letter of Credit
Outstandings and Standby Letter of Credit Outstandings.
(iii) Section 2.06(a) of the
Credit Agreement is hereby amended to add the following at the end
of such Section:
In addition, no Letter of Credit
shall be issued if after giving effect to such issuance:
(i) Standby Letter of Credit Outstandings shall exceed
$200,000,000 or Commercial Letter of Credit Outstandings shall
exceed $200,000,000. The Lead Borrower may adjust the amount of the
Standby Letter of Credit Outstandings limit and the Commercial
Letter of Credit Outstandings limit, by providing three Business
Days prior written notice to the Agent, so long as the total of
such limits does not exceed the aggregate sublimit for Letter of
Credit Outstandings set for in this Section 2.06(a). The Agent
shall promptly confirm to the Borrowers, the Issuing Banks and the
Lenders the amount and the effective date of the revised
sublimits.
This Sixth Amendment is a Loan
Document for all purposes of the Credit Agreement and the other
Loan Documents.
This Sixth Amendment may be executed
in counterparts, and all parties need not execute the same
counterpart; however, no party shall be bound by this Sixth
Amendment until this Sixth Amendment has been executed by the
Agent, each Issuing Bank, each Borrower and the Required Lenders,
at which time this Sixth Amendment shall be binding on, enforceable
against and inure to the benefit of the Borrowers, the Agent, each
Issuing Bank and all Lenders. Facsimiles shall be effective as
originals.
THIS SIXTH 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.
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 Sixth Amendment with their legal counsel, (b) the
Borrowers have reviewed this Sixth Amendment and fully understand
the effect thereof and all terms an
