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Exhibit 10.1
SEVENTH AMENDMENT TO THE CREDIT AGREEMENT
SEVENTH AMENDMENT, dated as of July 31, 2000 (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) (i) the word "and" immediately preceding the first clause (iii) of
the definition of "Fixed Asset Availability" in Annex A to the Credit Agreement
is hereby deleted and a comma inserted in lieu thereof and (ii) the first clause
(iii) of such definition is hereby amended by deleting it in its entirety and
inserting in lieu thereof the following:
"(iii) from March 1, 1999 through and including July 31, 2000, up to 33
1/3% of Maximum Fixed Asset Availability and (iv) from August 1, 2000
and thereafter, up to 50% of Maximum Fixed Asset Availability".
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(b) Section 6.8 of the Credit Agreement is hereby amended by inserting
the following phrase at the end of clause (g) thereof: ", or any sales permitted
under Section 6.12".
(c) Section 6.12 of the Credit Agreement is hereby amended by (i)
adding "(a)" immediately after the phrase "other than" and (ii) adding at the
end thereof the phrase "(b) the Real Estate located at 8 Galleria Mall, York,
Pennsylvania and 600 Mt. Zion Road, York, Pennsylvania, up to a maximum of
$15,000,000 in the aggregate and (c) up to an additional $15,000,000 in the
aggregate of other assets of the Credit Parties not covered under clauses (a)
and (b) hereof."
(d) Section 6.18 of the Credit Agreement is hereby amended by deleting
the phrase "would exceed $25,000,000" and replacing it with the phrase "would
exceed $30,000,000".
Section 2. Consent. The Requisite Lenders hereby consent to Bon-Ton's
creation of a wholly-owned Subsidiary (the "Insurance Subsidiary") to act as a
captive reinsurance company for the sole purpose of providing an insurance
program to the holders of its Bon-Ton branded credit cards (the "Insurance
Program"). None of the Credit Parties may transfer any assets to the Insurance
Subsidiary other than for organizational capital and expenses not to exceed
$1,000,000 in the aggregate. The Insurance Subsidiary may not engage in any
business (other than providing the Insurance Program) or incur any Indebtedness
(other than in connection with the Insurance Program).
Section 3. Conditions to Effectiveness. This Amendment shall become effective
as of the date hereof when the Agent shall have received 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.
Section 4. 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.
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(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 5. 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 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 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 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 8. 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.
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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
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AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Charles D. Chiodo
_________________________________
Name: Charles D. Chiodo
Title: Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Mark J. Long
_________________________________
Name: Mark J. Long
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/ Michael P. Baranowski
_________________________________
Name: Michael P. Baranowski
Title: Vice President
FLEET BUSINESS CREDIT CORPORATION
By: /s/ John A. O'Kane
_________________________________
Name: John A. O'Kane
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Albert R. Joseph
_________________________________
Name: Albert R. Joseph
Title: Vice President
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