EXHIBIT 10.13(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of January 30,
2004 (this "Amendment"), among The Bon-Ton Department Stores, Inc., a
Pennsylvania corporation, and The ▇▇▇▇▇-▇▇▇▇▇▇▇ Stores Corp., an Ohio
corporation, as Borrowers, the other Credit Parties (as defined in the Credit
Agreement referred to below) signatory thereto, the lenders from time to time
signatory thereto (each a "Lender" and collectively, "Lenders") and General
Electric Capital Corporation, a Delaware corporation ("GE Capital"), as the
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, Borrower, the other Credit Parties, Lenders and
Administrative Agent are parties to that certain Second Amended and Restated
Credit Agreement, dated as of October 24, 2003 (as amended, the "Credit
Agreement");
WHEREAS, the Credit Parties have requested that the Lenders
amend the Credit Agreement to permit certain changes to the Securitization
Documents;
WHEREAS, the Lenders are willing to agree to the requested
amendments on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have their defined meanings when used
herein.
2. Amendments to Credit Agreement.
(a) The Credit Agreement shall be amended to add the
following new Section 5.14 thereto:
"5.14 Mergers. On or before the date which is ten
(10) days following the first anniversary of the First
Amendment Effective Date, the Borrowers shall cause El-Bee
Receivables to be (a) merged or consolidated with and into a
Credit Party, with such Credit Party to survive, or (b)
liquidated or dissolved with its assets, if any, to be
distributed to El-Bee Chargit."
(b) Section 6.2 of the Credit Agreement shall be amended
to (i) delete clauses (e) and (f) thereof in their entirety and (ii)
substitute the following new clauses (e) and (f) in lieu thereof:
"(e) Bon-Ton and ▇▇▇▇▇-▇▇▇▇▇▇▇ may make investments
in Bon-Ton Receivables arising from the transfer by Bon-Ton
and/or ▇▇▇▇▇-▇▇▇▇▇▇▇ to Bon-Ton Receivables of Receivables or
the issuance by Bon-Ton Receivables of one or more
Securitization Notes, in each case in connection with and
pursuant to the Securitization Documents; provided, however
that with respect to clause (e) the aggregate amount of such
investments does not exceed the amount necessary to consummate
the sales of Receivables and related assets contemplated by
the Securitization Documents; (f) the Securitization Notes;"
(c) Section 6.6 of the Credit Agreement shall be amended
to (i) delete clauses (c) and (d) thereof in their entirety and (ii)
insert the following new clause (c) in lieu thereof:
" and (c) the "Performance Undertaking" by Parent and
Holdings pursuant to and as defined in the Securitization
Documents."
(d) Section 6.8 of the Credit Agreement shall be amended
to (i) delete clause (f) thereof and (ii) insert the following new
clause (f) in lieu thereof:
"(f) sales of Borrowers' private-label credit card
receivables pursuant to the Receivables Purchase Agreement;"
(e) Section 6.19 of the Credit Agreement shall be amended
to (i) to delete the word "Changes" in the title thereof and (ii)
substitute the word "Covenants" in lieu thereof.
(f) Section 6.19(a) of the Credit Agreement shall be
amended to (i) delete the proviso at the end of the first sentence
thereof and (ii) add the following new sentence following the last
sentence thereof:
"Bon-Ton shall not, nor shall it permit Bon-Ton
Receivables to, sell, transfer, convey, assign or otherwise
dispose of the Transferor Certificate or the Ownership
Interest Certificate without the consent of the Requisite
Lenders."
(g) Section 6.20 of the Credit Agreement shall be amended
to (i) insert "(a)" immediately preceding the first sentence set forth
therein, (ii) reletter clauses (a) and (b) set forth in the first
sentence as clauses (i) and (ii), respectively, and (iii) insert the
following new clause (b) immediately following clause (a) therein:
2
"(b) From and after the First Amendment Effective
Date, El-Bee Receivables shall not (i) engage in any
activities, (ii) form or acquire any Subsidiary, (iii) merge
with, consolidate with, acquire all or substantially all of
the assets or capital stock of, or otherwise combine with or
acquire, any Person or operating division of any Person;
provided that El-Bee Receivables may be merged or otherwise
combined with or into a Credit Party so long as the Credit
Party shall be the survivor of any such merger or
consolidation to which it is a party, (iv) make or permit to
exist any investment in, or make, accrue or permit to exist
loans or advances of money to, any Person, through the direct
or indirect lending of money, holding of securities or
otherwise, (v) create, incur, assume or permit to exist any
Indebtedness, (vi) create, incur, assume or permit to exist
any Guaranteed Indebtedness, (vii) create, incur, assume or
permit to exist any Lien on or with respect to its properties
or assets, (viii) sell, transfer, convey, assign or otherwise
dispose of any of its properties or other assets (other than
to a Credit Party), or (ix) make any Restricted Payment other
than to El-Bee Chargit."
(h) Section 8.1 of the Credit Agreement shall be amended
to (i) delete clause (l) thereof and (ii) insert the following new
clause (l) in lieu thereof:
"(l) A termination event, trust termination event,
early amortization event, payout event, event of default or
any other event causing the acceleration and/or early
amortization under the Securitization Documents shall have
occurred which is not cured within any applicable grace
period."
(i) Annex A to the Credit Agreement shall be amended to
delete the following definitions: (i) "BT Intercreditor Agreement,"
"(ii) BT Receivables Securitization," (iii) "BT Securitization
Documents," (iv) "Deferred Payment Note," (v) "EB Intercreditor
Agreement," (vi) "EB Purchase Agreements," (vii) "EB Receivables
Securitization," (viii) "EB Securitization Documents," (ix) "Master
Amendment to RPA," (x) "Subordinated Note" and (xi) "Transfer
Agreement."
(j) Annex A to the Credit Agreement shall be amended to
insert the following new definitions in proper alphabetical order:
"`First Amendment Effective Date' shall have the
defined meaning set forth in that certain First Amendment to
Credit Agreement dated as of January 30, 2004 among the
Borrowers, the other Credit Parties signatory thereto, the
Lenders party thereto and Administrative Agent."
"`Intercreditor Agreement' shall mean the
Intercreditor Agreement dated January 30, 2004, by and among
Bon-Ton and ▇▇▇▇▇-▇▇▇▇▇▇▇, as
3
sellers and borrowers, Bon-Ton Receivables, as transferor,
Receivables Trust, as issuer, Indenture Trustee and
Administrative Agent, as bank agent."
"`Ownership Interest Certificate' shall have the
meaning assigned to it in the Securitization Documents.
"`Receivables Purchase Agreement' shall mean the
Receivables Purchase Agreement dated as of January 30, 2004,
by and among Bon-Ton and ▇▇▇▇▇-▇▇▇▇▇▇▇, as sellers and Bon-Ton
Receivables, as purchaser.
"`Receivables Trust' shall mean Bon-Ton Receivables
Master Note Trust, a statutory trust organized under the laws
of the state of Delaware."
"`Securitization Notes' shall mean the "Revolving
Notes" issued pursuant to and as defined in the Receivables
Purchase Agreement."
"`Transferor Certificate' shall have the meaning
assigned to it in the Securitization Documents.
(k) Annex A to the Credit Agreement shall be amended to
(i) delete the definition of "Receivables" and (ii) substitute the
following in lieu thereof:
"`Receivables' shall have the meaning set forth in
the Securitization Documents."
(l) Annex A to the Credit Agreement shall be amended to
(i) delete the definition of "Purchased Property" and (ii) substitute
the following in lieu thereof:
"`Purchased Property' shall have the meaning assigned
to it in the Intercreditor Agreement."
(m) Annex A to the Credit Agreement shall be amended to
(i) delete the definition of "Securitization Documents" and (ii)
substitute the following in lieu thereof:
"`Securitization Documents' shall mean, collectively,
(a) Administration Agreement dated as of January 30, 2004,
between Receivables Trust , as issuer, and Bon-Ton, as
administrator; (b) Master Indenture dated as of January 30,
2004, between Receivables Trust, as issuer, and Wachovia Bank,
N.A., as indenture trustee (in such capacity, the "Indenture
Trustee"); (c) Note Purchase Agreement dated as of
4
January 30, 2004, by and among Bon-Ton Receivables, as
Transferor, Bon-Ton, as servicer, Falcon Asset Securitization
Corporation and Charta, LLC, as conduit purchasers, Bank One,
N.A. (Main Office Chicago) and Citicorp North America, Inc.,
as managing agents, Bank One, NA (Main Office Chicago), as
Class A agent for the purchasers and Bank One, NA (Main Office
Chicago) and Citibank, N.A., as committed purchasers; (d)
Performance Undertaking dated as of January 30, 2004 executed
by Parent and Holdings in favor of Receivables Trust and
Indenture Trustee; (e) the Receivables Purchase Agreement; (f)
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Supplement dated as of January 30,
2004, between Receivables Trust, as issuer, and Indenture
Trustee; (g) Trust Agreement dated as of January 30, 2004,
between Bon-Ton Receivables, as transferor, and Wilmington
Trust Company, as owner trustee; (h) Transfer and Servicing
Agreement dated as of January 30, 2004, by and among Bon-Ton
Receivables, as transferor, Bon-Ton, as servicer, Indenture
Trustee and Receivables Trust, as issuer; (i) the
Intercreditor Agreement; (j) the Securitization Notes; (k) the
Transferor Certificate; and (l) the Ownership Interest
Certificate."
(n) Annex A to the Credit Agreement shall be amended to
(i) delete in the definition of "Loan Documents" the phrase "the BT
Intercreditor Agreement, the EB Intercreditor Agreement" and (ii)
substitute the phrase "the Intercreditor Agreement" in lieu thereof.
(o) Annex E to the Credit Agreement shall be amended to
(i) delete clause (h) in its entirety and (ii) substitute the following
new clause (h) in lieu thereof:
"(h) Notices under Securitization Documents. To
Administrative Agent (i) copies of all material notices
received under or with respect to any Securitization Document
and (ii) upon Administrative Agent's request, copies of
reports delivered to the investors, purchasers or agents
therefor pursuant to the Securitization Documents;"
(p) Annex K to the Credit Agreement shall be amended to
(i) delete the text of clauses (j) and (k) in their entirety and (ii)
substitute the phrase "Intentionally deleted." in lieu thereof:
3. Representations and Warranties. In order to induce
Administrative Agent and Lenders to enter into this Amendment, the Credit
Parties hereby represent and warrant to Administrative Agent and Lenders that
the representations and warranties of the Credit Parties contained in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects on and as of the date hereof (after giving effect hereto), except where
such representations and warranties expressly relate to an earlier date in which
case such representations and warranties were true and correct in all material
respects as of such earlier date.
5
4. Conditions to Effectiveness. This Amendment shall be
effective on the date (the "First Amendment Effective Date") when the following
conditions shall have occurred:
(a) Administrative Agent shall have executed this
Amendment and shall have received counterparts hereof, duly executed
and delivered by each Credit Party and Requisite Lenders; and
(b) the Securitization Documents, including, without
limitation, the Intercreditor Agreement, shall be in form and substance
satisfactory to the Administrative Agent, in its sole discretion, and
shall have been executed by each of the parties thereto.
5. Reference to Credit Agreement. Upon the effectiveness
of this Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," or words of like or similar import shall mean and be a reference to
the Credit Agreement, as modified and amended by this Amendment.
6. Acknowledgement and Consent. Each Credit Party by
their execution of this Amendment hereby:
(a) acknowledges and consents to this Amendment; and
(b) ratifies and confirms that all guaranties,
assurances, obligations and liens under the Loan Documents are not
released, diminished, impaired, reduced or otherwise adversely affected
and agrees that the execution, delivery and performance of this
Amendment shall not in any way affect such Person's obligations under
any Loan Document to which such Person is a party, which obligations on
the date hereof remain absolute and unconditional and are not subject
to any defense, set-off or counterclaim whatsoever.
7. Governing Law and Jurisdiction. THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Expenses. Borrower agrees to pay and reimburse
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment and its review of
the Securitization Documents, including, without limitation, the reasonable fees
and disbursements of counsel to Administrative Agent.
9. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
6
10. Counterparts. This Amendment may be executed by the
parties hereto in any number of separate counterparts (including by facsimile
transmission) and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
11. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of Borrower and its successors and
assigns, and upon Administrative Agent and the Lenders and their respective
successors and assigns.
12. Continuing Effect. Except as expressly amended
hereby, the Credit Agreement shall continue to be and shall remain in full force
and effect in accordance with its terms. This Amendment shall not constitute an
amendment or waiver of any provision of the Credit Agreement not expressly
referred to herein and shall not be construed as an amendment, waiver or consent
to any action on the part of Borrower that would require an amendment, waiver or
consent of Administrative Agent or the Lenders except as expressly stated
herein. Any reference to the "Credit Agreement" in the Loan Documents or any
related documents shall be deemed to be a reference to the Credit Agreement as
amended by this Amendment.
13. NO ORAL AGREEMENTS. THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
day and year first above written.
THE BON-TON DEPARTMENT STORES, INC.,
as a Borrower
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE ▇▇▇▇▇-▇▇▇▇▇▇▇ STORES CORP.,
as a Borrower
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Treasurer
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Administrative Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Duly Authorized Signatory
BANK ONE, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Portfolio Manager
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Team Leader
CONGRESS FINANCIAL CORPORATION
(CENTRAL),
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO FOOTHILL, LLC as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
BANK OF AMERICA BUSINESS CREDIT, as a
Lender
By:_____________________________
Name:___________________________
Title:__________________________
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Loan Officer
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director Banking Products
Services, US
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director Banking Products Services, US
MANUFACTURERS AND TRADERS TRUST
COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The following Persons are signatories to this Amendment in
their capacity as Credit Parties and not as Borrowers.
THE BON-TON STORES, INC.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON TRADE CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON STORES OF LANCASTER, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
THE BON-TON GIFTCO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇- ▇▇▇▇▇▇▇ WEST ▇▇▇▇▇▇▇▇, INC.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
▇▇▇▇▇- ▇▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
THE BEE-GEE SHOE CORP.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
▇▇▇▇▇- ▇▇▇▇▇▇▇ INDIANA, L.P.
By: ▇▇▇▇▇-▇▇▇▇▇▇▇ Holdings, Inc.,
its sole general partner
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President &
Assistant Treasurer
EL- BEE CHARGIT CORP.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
▇▇▇▇▇- ▇▇▇▇▇▇▇ OPERATIONS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Assistant
Secretary