Exhibit 10.16(b)
AMENDMENT
Dated as of June 30, 1995
to
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Dated as of June 12, 1995
THIS AMENDMENT ("Amendment") dated as of June 30, 1995 is entered into
among THE BON-TON RECEIVABLES CORP. ("BT Corp"), THE BON-TON RECEIVABLES
PARTNERSHIP, L.P. ("BT LP," and BT Corp and BT LP together, the "Seller"),
BTRGP, INC. ("BTRGP"), FALCON ASSET SECURITIZATION CORPORATION ("Falcon"),
certain financial institutions, and THE FIRST NATIONAL BANK OF CHICAGO ("FNBC"),
as Agent (the "Agent").
PRELIMINARY STATEMENT. The Seller, BTRGP, Falcon, FNBC (as the
initial Investor thereunder), and the Agent have entered into an Amended and
Restated Receivables Purchase Agreement dated as of June 12, 1995 (the
"Agreement"), the terms defined therein being used herein as therein defined
unless otherwise defined herein), and now desire to (i) add additional financial
institutions as Investors under the Agreement (each, a "New Investor"), (ii)
modify the Commitments in connection with the introduction of the New Investors
and (iii) provide for a "Liquidity Fee" (as referred to below). The
undersigned agree, on the terms and conditions set forth below, to amend the
Agreement as hereinafter set forth.
SECTION 1. Amendments to the Agreement and Effect Thereof. The
----------------------------------------------
parties hereto, effective the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, agree as follows:
---------
1.1 Each of the financial institutions denoted a "New Investor" on
the signature page hereto expressly assumes and agrees to perform and
observe all and singular the covenants, agreements, terms and conditions,
obligations, appointments, duties and liabilities of an Investor under the
Agreement.
1.2 Each New Investor shall be, and shall have all of the rights of,
an Investor under and for all purposes of the Agreement. Each reference in
the Agreement to the "Investors" shall include the New Investors.
1.3 The amount of each Investor's Commitment shall be the respective
amount set opposite such Investor's name on the signature pages to this
Agreement, as such amount may be modified from time to time in accordance
with the terms of the Agreement.
1.4 Article II of the Agreement is hereby amended to add the
----------
following new Section 2.7 thereto:
"Section 2.7. Liquidity Fee. On the first Business Day of each
-------------
month, the Seller shall pay to the Agent, for the account of the
Investors in accordance with their Pro Rata Shares, a fee equal to
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT] per annum times
the average daily Purchase Limit in effect during the immediately
preceding calendar month."
1.5 Section 9.1 of the Agreement is hereby amended to add the
-----------
following sentence thereto immediately following the third sentence
thereof:
"As to any matters not expressly provided for by this Agreement
(including, without limitation, any enforcement or collection
activity), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Investors."
1.5 Section 9.6 of the Agreement is hereby amended to add the
-----------
following proviso at the end thereof:
"provided, however, that the Investors shall have no liability
--------
under this Section 9.6 to reimburse the Agent in respect of any such
amount or expense that arises by reason of the gross negligence or
willful misconduct of the Agent."
1.7 Section 9.8 of the Agreement is hereby amended to delete the
-----------
first sentence thereof in its entirety and to substitute the following
therefor:
"The Agent may, upon thirty days' notice to the Seller and the
Purchasers, resign as Agent. In addition, the Agent will resign as
Agent upon the written direction of (i) if at such time FALCON shall
have any Receivable Interest hereunder, all of the Purchasers, and
(ii) if at such time FALCON shall not have any Receivable Interest
hereunder, the Required Investors."
1.8 Section 10.1(b) of the Agreement is hereby amended to delete the
---------------
second sentence thereof in its entirety and to substitute the following
therefor:
"The consent of the Seller (which consent shall not be
unreasonably withheld) and FALCON shall be required prior to the
effectiveness of any such assignment; provided that following the
--------
occurrence, and during the continuance, of a Termination Event, the
consent of the Seller to any such assignment shall not be required."
1.9 Section 11.1(b)(i) of the Agreement is hereby amended to delete
------------------
clause (H) thereof in its entirety and to substitute the following
therefor:
2
"(H) except in the manner expressly provided herein, release the
Receivables Interest, or any other security interest or ownership
interest, of any Purchaser granted hereunder in the Receivables, the
Related Security and the Collections, or (I) amend or modify any
defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (H) above in a manner which
would circumvent the intention of the restrictions set forth in such
clauses;"
1.10 Exhibit I to the Agreement is hereby amended to delete the figure
---------
".09" in the definition therein of "Adjusted Liquidity Price" and to
------------------------
substitute therefor the following figure:
[REDACTED DUE TO REQUEST FOR CONFIDENTIAL TREATMENT]
1.11 Exhibit I to the Agreement is hereby further amended to add the
---------
following new definition thereto:
"Reinvestment" has the meaning assigned to such term in Section
------------
1.6."
1.12 Exhibit I to the Agreement is hereby further amended to delete
---------
the definition therein of "Required Investors" in its entirety and to
------------------
substitute the following new definition therefor:
"Required Investors" means, at any time, two or more Investors
------------------
with aggregate Commitments in excess of 66-2/3% of the Purchase
Limit."
1.13 Exhibit I to the Agreement is hereby further amended to delete
---------
clause (b) of the definition therein of "Tranch Period" in its entirety and
-------------
to substitute the following new clause (b) therefor:
"(b) if Discount for such Receivable Interest is calculated
on the basis of the LIBO Rate, a period of one, two or three months,
or such other period as may be mutually agreeable to the Required
Investors, the Agent and the Seller, commencing on a Business Day
selected by the Seller or the Agent pursuant to this Agreement. Such
Tranche Period shall end on the day in the applicable succeeding
calendar month which corresponds numerically to the beginning day of
such Tranche Period, provided, however, that if there is no such
numerically corresponding day in such succeeding month, such Tranche
Period shall end of the last Business Day of such succeeding month;
and"
SECTION 2. Conditions Precedent. This Amendment shall become effective
--------------------
upon receipt by the Agent of (i) counterparts of this Amendment executed by each
of the Sellers, BTRGP, Falcon, FNBC and each of the New Investors or, as to any
Investors, advice satisfactory to the Agent that such Investor has executed this
Amendment, (ii) the fee letter of even date
3
herewith, duly executed by each of the Sellers, BTRGP and the Originator, and
the payment of all fees stated thereunder to be due on or prior to the effective
date of this Amendment, (iii) an opinion of Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇,
counsel to Seller, BTRGP and the Originators, in form and substance satisfactory
to the Agent and (iv) an opinion of counsel for each New Investors substantially
in the form of Exhibit A hereto.
SECTION 3. Covenants, Representation and Warranties of the Sellers and
-----------------------------------------------------------
BTRGP.
-----
3.1 Upon the effectiveness of this Amendment, each of the Sellers and
BTRGP hereby reaffirm all covenants, representations and warranties made by such
party in the Agreement as amended hereby and agree that all such covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment.
SECTION 4. Representations of the New Investors.
------------------------------------
4.1 Each of the New Investors (i) confirms that it has received a
copy of the Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own analysis and decision
to enter into this Amendment and assume its obligations hereunder and under the
Agreement; (ii) agrees that it will, independently and without reliance upon the
Agent, Falcon, FNBC or any other Investor and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under the Agreement; (iii) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(iv) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Agreement are required to be performed by
it as an Investor. Each New Investor that is not a Person organized under the
laws of a jurisdiction within the United States shall promptly following the
effectiveness of this Amendment, provide to the Agent the forms prescribed by
the Internal Revenue Service of the United States certifying as to such
Investor's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Investor under
the Agreement or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced by an applicable tax
treaty.
SECTION 5. Reference to and Effect on the Agreement.
----------------------------------------
5.1 Upon the effectiveness of this Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import shall mean and be a reference to the Agreement, as amended hereby, and
each reference to the Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Agreement shall mean and be a
reference to the Agreement as amended hereby.
4
5.2 Except as specifically amended above, the Agreement and all other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
5.2 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any Investor or the
Agent under the Agreement or any other document, instrument or agreement
executed in connection therewith, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
SECTION 6. Execution in Counterparts. This Amendment may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. Governing Law. This Amendment shall be governed by and
-------------
construed in accordance with the internal laws (and not the law of conflicts) of
the State of Illinois.
SECTION 8. 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.
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
THE BON-TON RECEIVABLES
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Secretary - Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE BON-TON RECEIVABLES
PARTNERSHIP, L.P.
By: BTRGP, INC.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Secretary - Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BTRGP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Secretary - Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6
FALCON ASSET SECURITIZATION
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Authorized Signer
c/o The First National Bank
of Chicago, as Agent
Asset-Backed Markets, Suite 0597
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment
----------
$95,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
as an Investor and as Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Vice President
The First National Bank of Chicago
Asset-Backed Markets, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7
Commitment: NEW INVESTORS:
----------
$15,000,000 NATWEST BANK N.A.
By: /s/ [SIGNATURE ILLEGIBLE]
-------------------------------------
Title: Vice President
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
$10,000,000 PNC BANK, N.A.
By: /S/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
Address: Land Title Building
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
$10,000,000 THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Assistant Vice President
Address: ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇
=========
$130,000,000 Total Commitments
8
EXHIBIT A
to
AMENDMENT
Dated as of June 30, 1995
FORM OF COUNSEL OPINION FOR NEW INVESTOR
The First National Bank of Chicago
Asset-Backed Markets Division, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Falcon Asset Securitization Corporation
c/o The First National Bank of Chicago
Asset Backed Markets Division, Suite 0596
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Amended and Restated Receivables Purchase
Agreement dated as of June 12, 1995 with The Bon-Ton
Receivables Corp. and The Bon-ton Receivables
Partnership L.P., as amended June 30, 1995
----------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for the [NAME OF BANK] (the "Bank") in
connection with (i) that certain Amended and Restated Receivables Purchase
Agreement dated as of June 12, 1995 (the "Purchase Agreement"; terms defined
therein and not otherwise defined in this letter shall have the respective
meanings ascribed therein), among The Bon-Ton Receivables Corp. and The Bon-Ton
Receivables Partnership, L.P. (collectively, the "Seller"), Falcon Asset
Securitization Corporation ("Falcon"), certain financial institutions parties
thereto as "Investors" and The First National Bank of Chicago ("FNBC") as agent
for the Investors (the "Agent") and (ii) that certain Amendment to the Purchase
Agreement (the "Amendment"; the Purchase Agreement, as amended by the Amendment,
being the "Amended Purchase Agreement") dated as of June 30, 1995 among the
Seller, Falcon, the Agent and the Bank and certain other "new Investors".
Subject to the qualifications and limitations stated herein, we hereby
advise you that, in our opinion:
9
1. The Bank is duly licensed and qualified to operate as a ________,
and is in good standing, under the laws of the State of ________ (the
"State")/1/.
2. Each of the Amendment and the Amended Purchase Agreement has been
duly authorized by all necessary corporation action, has been duly executed
and delivered by the Bank and, assuming due authorization, execution and
delivery by each of the other parties thereto, constitutes a legal, valid
and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms.
3. No consent, authorization or approval of, or filing with, any
United States federal governmental authority or any governmental authority
of the Sate is required in connection with the execution, delivery or
performance by the Bank of the Amendment, or the performance by the Bank of
its obligations under the Amended Purchase Agreement.
4. The Bank has the corporate power and authority under United
States law and the law of the State to execute, deliver and perform the
Amendment and the Amended Purchase Agreement and the execution, delivery
and performance of the Amendment and the Amended Purchase Agreement by the
Bank does not conflict with, result in a breach of, or constitute a default
under any law, rule or regulation of the United States or of the State, or
any order or judgment applicable to the Bank.
Our opinion set forth in paragraph 2 above is subject to the
qualifications that the enforceability of the Bank's obligations under the
Amendment and the Amended Purchase Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether such enforceability is considered in proceeding in equity
or at law).
Respectfully submitted,
-----------------------------
/1/ Insert the state in which the booking office is located.
10