Exhibit 10.4
EXECUTION COPY
CONSENT AND AMENDMENT NO. 4
CONSENT AND AMENDMENT NO. 4 (this "Consent and Amendment"), dated as
of June 10, 2005, among THE BON-TON DEPARTMENT STORES, INC. ("Bon-Ton") and THE
ELDER-BEERMAN STORES CORP. ("Elder-Beerman" and together with Bon-Ton, 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 and Lender.
W I T N E S S E T H:
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WHEREAS, the parties hereto have entered into that certain Second
Amended and Restated Credit Agreement, dated as of October 24, 2003 (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 being used herein as therein
defined); and
WHEREAS, the Borrowers and The Bon Ton Receivables Partnership, L.P.
are party to the existing Receivables Purchase Agreement dated as of January 30,
2004 (as amended, the "Receivables Agreement");
WHEREAS, the Borrowers intend to terminate the Receivables Agreement
and sell their private label credit card receivables portfolio (the "Receivables
Portfolio") to a third party receivables servicer acceptable to the Agent and
have requested the consent of the Requisite Lenders to such sale;
WHEREAS, a portion of the proceeds of the sale of the Receivables
Portfolio (approximately $90,000,000) will be used to prepay the Obligations
under the Credit Agreement;
WHEREAS, the Requisite Lenders do hereby consent thereto and agree to
amend the Credit Agreement 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. Consent. As required under Section 6.8 of the Credit
Agreement, the Agent and the Requisite Lenders hereby consent to the Borrowers
selling the Receivables Portfolio to HSBC Bank Nevada, N.A. pursuant to the
Receivables Purchase Agreement, (as defined in Section 2(e) of this Consent and
Amendment).
Section 2. Amendment. The Requisite Lenders, the Agent, the Borrowers
and the other Credit Parties hereby agree on the following amendments to the
Credit Agreement:
(a) Sections 6.2(e), 6.6(c), 6.6(d), 6.7(c) and 8.1(l) are hereby
deleted in their entirety and replaced with the text "[Intentionally Deleted]".
(b) Section 6.8(f) of the Credit Agreement is hereby amended by
deleting the clause in its entirety and replacing it with the following:
"(f) the sale of Borrowers' private-label credit card receivables
pursuant to the Receivables Purchase Agreement"
(c) Section 6.19(a) is hereby deleted in its entirety and replaced
with the following:
"(a) The Borrowers shall not, and shall not permit any of their
respective subsidiaries to amend the Receivables Purchase Agreement in
a manner adverse to any Credit Party, the Administrative Agent or
Lenders without the Administrative Agent's prior written consent."
(d) The following defined terms in Annex A shall be deleted in their
entirety: "BT Receivables Securitization," "BT Securitization Documents," "EB
Intercreditor Agreement," "EB Purchase Agreements," "EB Receivables
Securitization," "EB Securitization Documents," "Receivables," "Transfer
Agreement" and "Securitization Documents."
(e) Annex A is amended by inserting the following new definition in
the appropriate alphabetical order:
"Receivables Purchase Agreement" shall mean the Purchase and Sale
Agreement dated as of June 10, 2005 between the Parent and HSBC Bank
Nevada, N.A., in form and substance acceptable to the Administrative
Agent, as such agreement may be amended or supplemented in accordance
with the provisions of Section 6.19(a).
Section 3. Conditions to Effectiveness. This Consent and Amendment
shall become effective as of the date hereof when the Agent shall have received
the following:
(a) this Consent and Amendment, duly executed by the Borrowers, the
Credit Parties and the Requisite Lenders;
(b) a Credit Card Processor Agreement, duly executed by the Borrowers,
HSBC Bank Nevada, N.A. and the Agent; and
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(c) at least $65,000,000 from cash proceeds of the sale to be applied
as a prepayment of the outstanding principal balance of the Revolving Credit
Advances.
Section 4. Representations and Warranties. The Borrowers and other
Credit Parties hereby jointly and severally represent and warrant to the Lenders
and the Agent as follows:
(a) After giving effect to this Consent and 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 Consent and 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 Consent and 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 Consent and Amendment has been duly executed and delivered by
each Credit Party and each of this Consent and Amendment and the Credit
Agreement constitutes the legal, valid and binding obligation of the Credit
Parties, enforceable against them in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or similar law or by
general equitable principles.
Section 5. Effect on the Loan Documents. (a) 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.
(b) The execution, delivery and effectiveness of this Consent and
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 6. 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 Consent and 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.
Section 7. Execution in Counterparts. This Consent and Amendment may
be executed in any number of counterparts and by different parties hereto in
separate
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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 8. Governing Law. This Consent and 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Consent
and Amendment as of the date first above written.
Borrowers:
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THE BON-TON DEPARTMENT STORES, INC.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: Treasurer
THE ELDER-BEERMAN STORES CORP.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
Other Credit Parties:
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THE BON-TON STORES, INC.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: Treasurer
THE BON-TON CORP.
By: /s/ Keith E. Plowman
--------------------------------
Name: Keith E. Plowman
Title: Treasurer
THE BON-TON TRADE CORP.
By: /s/ Keith E. Plowman
--------------------------------
Name: Keith E. Plowman
Title: Treasurer
THE BON-TON STORES OF LANCASTER, INC.
By: /s/ Robert E. Stern
--------------------------------
Name: Robert E. Stern
Title: Secretary
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THE BON-TON GIFTCO, INC.
By: /s/ Keith E. Plowman
--------------------------------
Name: Keith E. Plowman
Title: Treasurer
ELDER-BEERMAN WEST VIRGINIA, INC.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
ELDER-BEERMAN HOLDINGS, INC.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
THE BEE-GEE SHOE CORP.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
ELDER-BEERMAN INDIANA, L.P.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
EL-BEE CHARGIT CORP.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
ELDER-BEERMAN OPERATIONS, LLC
By: /s/ Keith E. Plowman
--------------------------------
Name: Keith E. Plowman
Title: VP and Asst. Secretary
By: ELDER-BEERMAN HOLDINGS, INC.
By: /s/ H. Todd Dissinger
--------------------------------
Name: H. Todd Dissinger
Title: VP and Asst. Treasurer
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Agent and Lenders:
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GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Charles Chiodo
----------------------------------------
Name: Charles Chiodo
Title: Duly Authorized Signatory
UBS AG, Stamford Branch
By: /s/ Wilfred V. Saint
----------------------------------------
Name: Wilfred V. Saint
Title: Director Banking Products Services
BANK ONE, N.A.
By: /s/ Paul Fravel
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Name: Paul Fravel
Title: V. P.
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL) F/K/A
CONGRESS FINANCIAL
CORPORATION (CENTRAL)
By: /s/ Laura Dixon
----------------------------------------
Name: Laura Dixon
Title: Associate
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Pamela M. Pasqualini
----------------------------------------
Name: Pamela M. Pasqualini
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Allen R. Juleus
----------------------------------------
Name: Allen R. Juleus
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Steven Schuit
----------------------------------------
Name: Steven Schuit
Title: Vice President
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BANK OF AMERICA, N.A.
By:_______________________________
Name:
Title:
WELLS FARGO FOOTHILL, LLC
By: /s/ Kurt Duerfeldt
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Name: Kurt Duerfeldt
Title: Division Credit Manager, SVP
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