EXHIBIT 10.14(I)
EIGHTH AMENDMENT TO THE CREDIT AGREEMENT
EIGHTH AMENDMENT, dated as of December 6, 2001 (this
"Amendment"), among THE BON-TON DEPARTMENT STORES, INC. and THE BON-TON STORES
OF LANCASTER, INC. (collectively, the "Borrowers"), the other Credit Parties
party to the Credit Agreement referred to below, the Lenders party to such
Credit Agreement and GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative
Agent (in such capacity, the "Agent"), Collateral Agent (in such capacity, the
"Collateral Agent") and Lender.
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into that certain
Credit Agreement, dated as of April 15, 1997 (such Agreement, as amended,
supplemented or otherwise modified from time to time, being hereinafter referred
to as the "Credit Agreement," and capitalized terms defined therein and not
otherwise defined herein are used herein as therein defined); and
WHEREAS, the Borrowers desire to have the Lenders amend
certain provisions of the Credit Agreement; and
WHEREAS, the Lenders have agreed to such amendments upon the
terms and subject to the conditions provided herein;
NOW, THEREFORE, in consideration of the premises, covenants
and agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Amendment. The Lenders, the Agent, the Borrowers and the
other Credit Parties hereby agree to the following amendment to the Credit
Agreement:
(a) The definition of "Commitments" contained in Annex A
(Recitals) to Credit Agreement; Definitions is hereby amended by (i) replacing
the phrase "the signature page" in the third line thereof with the phrase "ANNEX
J" and (ii) replacing the phrase "Two Hundred Million Dollars ($200,000,000) on
the Closing Date" in the sixth line thereof with the phrase "One Hundred Seventy
Five Million Dollars ($175,000,000)".
(b) The definition of "Credit Parties" contained in Annex A
(Recitals) to Credit Agreement; Definitions is hereby amended by inserting the
phrase "each of the Guarantors," immediately after the phrase "each Borrower,"
in the first line thereof.
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(c) The definition of "Revolving Loan Commitment" contained in
Annex A (Recitals) to Credit Agreement; Definitions is hereby amended by (i)
replacing the phrase "the signature page" in the third line thereof with the
phrase "ANNEX J" and (ii) replacing the phrase "Two Hundred Million Dollars
($200,000,000) on the Closing Date" in the seventh line thereof with the phrase
"One Hundred Seventy Five Million Dollars ($175,000,000)".
(d) The Appendices to the Credit Agreement are hereby amended
by adding immediately after ANNEX I a new ANNEX J (Revolving Loan Commitment),
attached hereto as Schedule 1.
Section 2. Consent. The Lenders hereby consent to the creation of a
wholly-owned Subsidiary of The Bon-Ton National Corp. (the "Gift Certificate
Subsidiary") for the sole purpose of operating a gift certificate program (the
"Gift Certificate Program"). The Credit Parties may transfer assets to the Gift
Certificate Subsidiary, whether as capital, a loan or otherwise, only to the
extent that a transfer is required to allow the Gift Certificate Subsidiary to
operate the Gift Certificate Program. The Gift Certificate Subsidiary may not
engage in any business, other than operating the Gift Certificate Program, or
incur any Indebtedness, other than the Indebtedness permitted in Section 6.3
(Indebtedness) of the Credit Agreement. The Bon-Ton National Corp. shall pledge
the shares of the Gift Certificate Subsidiary to the Agent pursuant to the
Pledge Agreement and the Gift Certificate Subsidiary shall enter into a Joinder
Agreement to become (a) a Grantor under the Security Agreement and (b) a
Guarantor under the Guaranty.
Section 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date hereof when the Agent shall have received by no later
than December 7, 2001, the following:
(a) counterparts of this Amendment executed by each Borrower,
each Credit Party, the Agent and the Requisite Lenders or, as to the Requisite
Lenders, advice satisfactory to the Agent that the Requisite Lenders have
executed this Amendment; and
(b) an amendment fee equal to 0.02% of the amount of the
Commitment, as in effect immediately after giving effect to this Amendment, of
each Lender that has executed this Amendment and delivered evidence thereof
satisfactory to the Agent at or before 5:00 p.m. New York City time on the
effective date of the Amendment and paid to each such Lender.
Section 4. Affirmative Covenant. The Borrower agrees that it shall
deliver to the Administrative Agent within 15 Business Days of the formation of
the Gift Certificate Subsidiary (a) a Joinder Agreement substantially in the
form of Exhibit A attached hereto duly executed by the Gift Certificate
Subsidiary and (ii) a Pledge Amendment, as set forth in Section 6(d) of the
Pledge Agreement, pledging the stock of the Gift Certificate Subsidiary.
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Section 5. Representations and Warranties. The Borrowers and the other
Credit Parties hereby jointly and severally represent and warrant to the Lenders
and the Agent as follows:
(a) After giving effect to this Amendment, each of the
representations and warranties in Section 3 of the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on and as of
the date hereof as though made on and as of such date, except to the extent that
any such representation or warranty expressly relates to an earlier date and
except for changes therein not prohibited by the Credit Agreement.
(b) After giving effect to this Amendment, no Default or Event
of Default has occurred and is continuing as of the date hereof.
(c) The execution, delivery and performance by the Credit
Parties of this Amendment have been duly authorized by all necessary or proper
corporate action and do not require the consent or approval of any Person which
has not been obtained.
(d) This Amendment has been duly executed and delivered by
each Credit Party and each of this Amendment and the Credit Agreement as amended
hereby constitutes the legal, valid and binding obligation of the Credit
Parties, enforceable against them in accordance with its terms.
Section 6. Reference to and Effect on the Loan Documents. (a) Upon the
effectiveness of this Amendment, on and after the date hereof, each reference in
the Credit Agreement "this Agreement," "hereunder," "hereof," "herein," or words
of like import, shall mean and be a reference to the Credit Agreement as amended
hereby and each reference in the other Loan Documents to "the Credit Agreement"
shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except to the extent amended hereby, the provisions of the
Credit Agreement and all of the other Loan 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, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
Section 7. Costs and Expenses. The Borrowers agree to pay on demand all
costs, fees and expenses of the Agent in connection with the preparation,
execution and delivery of this Amendment and the other instruments and documents
to be delivered pursuant hereto, including the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto.
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Section 8. 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 shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
Section 9. Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment as of the date first above written.
BORROWERS:
THE BON-TON DEPARTMENT STORES, INC.
By: /s/ H. Todd Dissinger
Name: H. Todd Dissinger
Title: Treasurer
THE BON-TON STORES OF LANCASTER, INC.
By: /s/ Robert E. Stern
Name: Robert E. Stern
Title: Secretary/Treasurer
OTHER CREDIT PARTIES:
THE BON-TON STORES, INC.
By: /s/ H. Todd Dissinger
Name: H. Todd Dissinger
Title: Treasurer
THE BON-TON CORP.
By: /s/ Robert E. Stern
Name: Robert E. Stern
Title: Secretary
THE BON-TON NATIONAL CORP.
By: /s/ Robert E. Stern
Name: Robert E. Stern
Title: Secretary
THE BON-TON TRADE CORP.
By: /s/ Robert E. Stern
Name: Robert E. Stern
Title: Secretary
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO THE BON-TON CREDIT AGREEMENT]
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Charles Chiodo
Name: Charles Chiodo
Title: Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Steven Schuit
Name: Steven Schuit
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Joan Anderson
Name: Joan Anderson
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ C. Gregory Vogelsang
Name: C. Gregory Vogelsang
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ Robert J. Cambora
Name: Robert J. Cambora
Title: Senior Vice President
FLEET BUSINESS CREDIT CORPORATION
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Albert R. Joseph
Name: Albert R. Joseph
Title: Vice President
[SIGNATURE PAGE TO EIGHTH AMENDMENT TO THE BON-TON CREDIT AGREEMENT]
Schedule 1
ANNEX J (FROM ANNEX A
REVOLVING LOAN COMMITMENT DEFINITION)
TO
CREDIT AGREEMENT
Revolving Loan Commitment:
- -------------------------
42,000,000 (24.0%) General Electric Capital Corporation
21,875,000 (12.5%) The CIT Group/Business Credit, Inc.
21,875,000 (12.5%) First Union National Bank
17,500,000 (10.0%) Manufacturers and Traders Trust Company
26,250,000 (15.0%) Foothill Capital Corporation
31,500,000 (18.0%) Fleet Business Credit Corporation
14,000,000 (08.0%) Union Bank of California, N.A.
Exhibit A
JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of ________ __, 2001 is
delivered in connection with the Eighth Amendment to the Credit Agreement, dated
as of April 15, 1997, among The Bon-Ton Department Stores, Inc. and The Bon-Ton
Stores of Lancaster, Inc., (collectively, the "Borrowers"), the other Credit
Parties party thereto, the lenders party thereto and General Electric Capital
Corporation, as Administrative Agent (in such capacity, the "Administrative
Agent"), Collateral Agent (in such capacity, the "Collateral Agent") and Lender.
Capitalized terms used herein but not defined herein are used with the meanings
given them in the Credit Agreement.
By executing and delivering this Joinder Agreement, the
undersigned hereby becomes a party to (i) the Security Agreement as a Grantor
thereunder with the same force and effect as if originally named as a Grantor
and (ii) the Guaranty Agreement as a Guarantor thereunder with the same force
and effect as if originally named as a Guarantor. Without limiting the
generality of the foregoing, the undersigned hereby grants to the Administrative
Agent, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Obligations of the undersigned, hereby collaterally assigns, conveys,
mortgages, pledges, hypothecates and transfers to the Administrative Agent and
grants to the Administrative Agent a Lien on and security interest in, all of
its right, title and interest in, to and under the Collateral and expressly
assumes all obligations and liabilities of a Grantor or Guarantor, as the case
may be, thereunder.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 and 4.2 to the Guaranty and Schedules II
and III-F to the Security Agreement.
The undersigned hereby represents and warrants that each of
the representations and warranties contained in Sections 4 of both the Security
Agreement and the Guaranty applicable to it are true and correct on and as the
date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Joinder
Agreement to be duly executed and delivered as of the date first above written.
[GIFT CERTIFICATE SUBSIDIARY]
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date of this Joinder Agreement
first above written.
GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent
By:
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO JOINDER AGREEMENT TO THE BON-TON CREDIT AGREEMENT]