EXHIBIT 10.20(c)
EXECUTION COPY
MASTER AMENDMENT AGREEMENT NO. 1
to
TRANSFER AND SERVICING AGREEMENT
PERFORMANCE UNDERTAKING
NOTE PURCHASE AGREEMENT
ADMINISTRATION AGREEMENT
INDENTURE SUPPLEMENT
MASTER INDENTURE
THIS MASTER AMENDMENT AGREEMENT ("Amendment") is entered into as of
January 30, 2005 by and among The Bon-Ton Department Stores, Inc. ("Bon-Ton
DSI"), as the existing Servicer, The Bon-Ton Operations, Inc. ("Bon-Ton
Operations", as the new Servicer, The Bon-Ton Receivables Partnership, L.P. (the
"Transferor"), the Bon-Ton Receivables Master Note Trust (the "Issuer"), The
Bon-Ton Stores, Inc. and The Bon-Ton Corp., (collectively, the "Performance
Guarantors" and together with Bon-Ton DSI, Newco, the Transferor and the Issuer,
the "Bon-Ton Parties"), Wilmington Trust Company, as owner trustee (the "Owner
Trustee"), Wachovia Bank, N.A., as indenture trustee (the "Indenture Trustee"),
Falcon Asset Securitization Corporation and CHARTA, LLC, as "Conduit
Purchasers", JPMorgan Chase Bank, National Association (successor by merger to
Bank One, N.A. (Main Office Chicago)) ("JPMorgan Chase") and Citicorp North
America, Inc. ("CNAI"), as Managing Agents, JPMorgan Chase and Citibank, N.A.,
as Committed Purchasers and JPMorgan Chase, as Class A Agent. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Master Indenture referred to below, or if not defined in such Master
Indenture, in the other applicable Transaction Documents.
PRELIMINARY STATEMENTS
A. Each of Bon-Ton DSI and The ▇▇▇▇▇-▇▇▇▇▇▇▇ Stores Corp. ("▇▇▇▇▇-▇▇▇▇▇▇▇"
and together with Bon-Ton DSI in such capacity, the "Sellers") agreed to sell,
transfer and assign to the Transferor, and the Transferor agreed to purchase
from Bon-Ton DSI and ▇▇▇▇▇-▇▇▇▇▇▇▇, all of the respective right, title and
interest of Bon-Ton DSI and ▇▇▇▇▇-▇▇▇▇▇▇▇ in and to the Transferred Receivables
(as defined in the Receivables Purchase Agreement) and certain related property
pursuant to that certain Receivables Purchase Agreement dated as of January 30,
2004 (as amended, restated, supplemented or otherwise modified from time to
time, the "Receivables Purchase Agreement"), by and among Bon-Ton DSI,
▇▇▇▇▇-▇▇▇▇▇▇▇ and the Transferor.
B. The Transferor agreed to sell, transfer and assign to the Issuer, and the
Issuer agreed to purchase from the Transferor, all of the right, title and
interest of the Transferor in and to the Transferred Receivables and the related
property pursuant to that certain Transfer and Servicing Agreement dated as of
January 30, 2004 (as amended, restated, supplemented or other otherwise
modified from time to time, the "Transfer and Servicing Agreement"), by and
among the Transferor, the Issuer, the Indenture Trustee, and Bon-Ton DSI, as
servicer.
C. The Performance Guarantors executed a Performance Undertaking dated as of
January 30, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, the "Performance Undertaking") pursuant to which the Performance
Guarantors guarantee the due and punctual performance of (i) the Sellers'
obligations to the Transferor under or in respect of the Receivables Purchase
Agreement and (ii) Bon-Ton DSI's obligation under or in respect of the Transfer
and Servicing Agreement and the Note Purchase Agreement.
D. The Transferor and the Indenture Trustee are parties to that certain
Master Indenture dated as of January 30, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Master Indenture")
pursuant to which the Issuer has agreed to pledge the Issuer Collateral to the
Indenture Trustee for the benefit of the Noteholders.
E. The Transferor and the Indenture Trustee are parties to that certain
Indenture Supplement dated as of January 30, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture
Supplement") supplementing the Master Indenture pursuant to which the Issuer
issued the Series 2004-1 Floating Rate Asset Backed Variable Funding Notes (the
"Class A Notes").
F. The Transferor, Bon-Ton DSI, as Servicer, Falcon Asset Securitization
Corporation and Charta, LLC, as Conduit Purchasers, JPMorgan Chase and CNAI, as
Managing Agents, JPMorgan Chase and Citibank, N.A., as Committed Purchasers and
JPMorgan Chase, as Class A Agent are parties to that certain Note Purchase
Agreement dated as of January 30, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Note Purchase Agreement") pursuant to
which the "Purchasers" thereunder agreed to acquire and fund the Class A Notes.
G. The Issuer and Bon-Ton DSI are parties to that certain Administration
Agreement dated as of January 30, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Administration Agreement") pursuant
to which Bon-Ton DSI agreed to perform, as the "Administrator", certain of the
duties of the Issuer and the Owner Trustee under certain Transaction Documents
and to provide such additional services consistent with the terms of such
Transaction Documents as the Issuer and the Owner Trustee may from time to time
request.
H. The parties hereto desire to appoint (or consent to the appointment) of
Bon-Ton Operations as "Servicer" and "Administrator" in replacement of Bon-Ton
DSI and to amend (or consent to the amendment) of the Transfer and Servicing
Agreement, the Performance Undertaking, the Note Purchase Agreement, the
Administration Agreement, the Master Indenture and the Indenture Supplement
(collectively, the "Applicable Agreements") to, among other things, reflect such
appointment and replacement.
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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SECTION 1. Replacement of Servicer and Administrator; Other Consents
Subject to the satisfaction of the conditions precedents set forth in Section 3
below:
(a) Effective as of the date hereof, Bon-Ton DSI shall cease to act
as Servicer and shall be released from all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
of the Transfer and Servicing Agreement or any other Transaction Document (other
than any such liabilities arising or relating to the period prior to such date)
and Bon-Ton Operations is appointed Servicer in its stead and Bon-Ton Operations
shall be the successor in all respects to Bon-Ton DSI with respect to servicing
functions under the Transfer and Servicing Agreement and each of the other
Transaction Documents and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions of the Transfer and Servicing Agreement and the other Transaction
Documents, and all references in under the Transfer and Servicing Agreement and
each of the other Transaction Documents to the Servicer shall be deemed to refer
to Bon-Ton Operations in such capacity.
(b) Effective as of the date hereof, Bon-Ton DSI shall cease to act
as Administrator and shall be released from all the responsibilities, duties and
liabilities relating thereto placed on the Administrator by the terms and
provisions of the Administration Agreement or any other Transaction Document
(other than any such liabilities arising or relating to the period prior to such
date) and Bon-Ton Operations is appointed Administrator in its stead and Bon-Ton
Operations shall be the successor in all respects to Bon-Ton DSI with respect to
the administration functions under the Administration Agreement and each of the
other Transaction Documents and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Administrator by the terms
and provisions of the Administration Agreement and the other Transaction
Documents, and all references in under the Administration and each of the other
Transaction Documents to the Administrator shall be deemed to refer to Bon-Ton
Operations in such capacity.
(c) Effective as of the date hereof, the parties hereto consent to
the transfer of all of the limited partnership interests in the Transferor held
by Bon-Ton DSI to Bon-Ton Operations.
SECTION 2. Amendments. Subject to the satisfaction of the condition
precedents set forth in Section 3 below, (a) each of the parties hereto agrees
that each of the Applicable Agreements is hereby amended to incorporate solely
the blacklined changes to such Applicable Agreement shown on the marked pages
attached hereto as Exhibit A and each other party hereto that is not a party
thereto hereby consents to such amendment to the extent such consent is required
pursuant to the Transaction Documents and (b) the Issuer and the Transferor
hereby direct the Owner Trustee, on the Issuer's behalf, to execute and deliver
to Bon-Ton Operations and its agents, as the new "Administrator" one or more
powers of attorney substantially in the form of Exhibit A to the Administration
Agreement, appointing Bon-Ton Operations as the Administrator the
attorney-in-fact of the Issuer. The Issuer and the Transferor hereby direct the
Indenture Trustee and the Owner Trustee to execute this Amendment and each of
the other
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parties hereto (other than the Indenture Trustee and Owner Trustee) consents to
such direction to the extent such consent is required by any of the Transaction
Documents.
SECTION 3. Conditions Precedent. This Amendment shall become effective and
be deemed effective upon (a) receipt by the Indenture Trustee of (i) one copy of
this Amendment duly executed by each of the parties hereto, (ii) one copy of a
Remittance Services Agreement, dated as of January 30, 2005 among Regulus West
LLC, Bon-Ton Operations, the Transferor and the Indenture Trustee and Bon-Ton
DSI executed by each of the parties thereto and (iii) a copy of a signed legal
opinion of Wolf Block with respect to due authorization, execution and delivery,
enforceability of the Amendment as against the Bon-Ton Parties and (b) receipt
by each Managing Agent of certain Fee Letters of even date herewith duly
executed by the Transferor and confirmation that any fees payable thereunder on
the date hereof have been received by each Managing Agent. This Amendment shall
become effective notwithstanding the failure to satisfy any condition or
requirement for the replacement of the Servicer and the Administrator or for the
amendment of any of the Applicable Agreements set forth in any of the
Transaction Documents (other than this Amendment) and each of the parties hereto
agrees that any such condition or requirement is hereby waived.
SECTION 4. Covenants, Representations and Warranties.
(a) Upon the effectiveness of this Amendment, each of Bon-Ton
Parties hereby reaffirms all covenants, representations and warranties made by
it, to the extent the same are not amended hereby, in the Transaction Documents
and agrees that all such covenants, representations and warranties (except to
the extent such representations and warranties related to a specific date) shall
be deemed to have been re-made as of the date of this Amendment (it being
understood that any representations and warranties of the Servicer are re-made
solely by Newco).
(b) Each of the Bon-Ton Parties hereby represents and warrants as to
itself (i) that this Amendment constitutes the legal, valid and binding
obligation of such party enforceable against such party in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity which may limit the
availability of equitable remedies and (ii) upon the effectiveness of this
Amendment, no event shall have occurred and be continuing which constitutes a
Pay Out Event or an Event of Default.
[(c) Bon-Ton Operations agrees to arrange for the delivery of a
non-consolidation opinion covering Bon-Ton Operations and the Transferor in form
and substance satisfactory to the Managing Agents no later than _____, 2005.](1)
SECTION 5. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, each reference in each
Applicable Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words
------------------------
(1) Note: Bracketed as this opinion may be delivered in connection with the
January 30 closing of the amendment.
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of like import shall mean and be a reference to such Applicable Agreement as
amended hereby, and each reference to one Applicable Agreement in any other
Transaction Document shall mean and be a reference to such Applicable Agreement
as amended hereby.
(b) Except as specifically amended hereby, the Transaction Documents
shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Issuer or the
Indenture Trustee under any of the Transaction Documents, nor constitute a
waiver of any provision contained therein, except as specifically set forth
herein.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CHOICE OF
LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAWS) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 7. 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 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.
SECTION 9. Limitation of Owner Trustee and Indenture Trustee Liability. It
is expressly understood and agreed by the parties that with respect to the
execution of this Amendment by Wilmington Trust Company for the Issuer (a) this
Amendment is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as Owner Trustee, in the exercise of the
powers and authority conferred and vested in it, pursuant to the Trust
Agreement, (b) each of the representations, under-takings and agreements herein
made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose for binding only the Issuer, (c) nothing
herein contained shall be construed as creating any liability on Wilmington
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person claiming by, through or
under the parties hereto, and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Amendment or any other related documents.
It is expressly understood and agreed by the parties that with
respect to the execution of this Amendment by Wachovia Bank, N.A. (a) this
Amendment is executed and delivered by Wachovia Bank, N.A., not individually or
personally, but solely as Indenture
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Trustee, in the exercise of the powers and authority conferred and vested in it,
pursuant to the Master Indenture, (b) nothing herein contained shall be
construed as creating any liability on Wachovia Bank, N.A., individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under the parties hereto, and (c)
under no circumstances shall Wachovia Bank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Amendment or any other related documents.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Amendment Agreement No. 1 to be executed on the date first set forth above by
their respective officers thereto duly authorized, to be effective as
hereinabove provided.
THE BON-TON DEPARTMENT STORES, INC.,
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON OPERATIONS, INC.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BON-TON RECEIVABLES PARTNERSHIP,
L.P., as Transferor
By: BTRGP, INC., its General Partner
By: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON STORES, INC.
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
BON-TON RECEIVABLES MASTER NOTE
TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee of the Trust,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
WACHOVIA BANK, N.A., as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
FALCON ASSET SECURITIZATION
CORPORATION, as Conduit Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signer
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION (successor by merger to Bank One,
N.A. (Main Office Chicago), as Class A Agent and
as a Managing Agent and as a Committed Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CHARTA, LLC, as a Conduit Purchaser
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as a Managing Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as a Committed Purchaser
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
Applicable Agreements (as amended)
Attached