AMENDMENT NO. 1 TO PURCHASE AGREEMENT
EXHIBIT 2.1
This Amendment No. 1 to Purchase Agreement (this “Amendment”) is made and entered into
as of February 16, 2006, between Saks Incorporated, a Tennessee corporation (“Seller”), and
The Bon-Ton Stores, Inc., a Pennsylvania corporation (“Buyer”).
W I T N E S S E T H:
WHEREAS, Buyer and Seller are parties to that certain Purchase Agreement, dated as of October
29, 2005 (the “Purchase Agreement”); and
WHEREAS, the parties desire to amend the Purchase Agreement in order to reflect their
agreements regarding that certain Agreement dated as of February 16, 2006 between Seller and
Xxxxxxx X. XxxXxxxxx and their desire to close the transactions contemplated by the Purchase
Agreement on or about March 6, 2006;
NOW THEREFORE, in consideration of the premises and agreements herein contained, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Amendment to Section 1.1. Section 1.1 of the Purchase Agreement is
hereby amended by amending and restating the following definition in its entirety to read as
follows:
"Reference Net Unfunded Benefit Liabilities” means $42,323,575.
Schedule 1.1(d) is amended and restated to read in its entirety as set forth in the
attachment to this Amendment.
The following definitions are hereby added to Section 1.1 of the Purchase Agreement:
"Executive Agreement” means that certain Agreement dated as of February 16,
2006 between Seller and MacDonald.
"MacDonald” means Xxxxxxx X. XxxXxxxxx.
The definitions of "Marketing Period” and "Initiation Date” are hereby
deleted from Section 1.1 of the Purchase Agreement.
2. Amendment to Section 2.4(a)(v). The definition of “Adjustment Amount” in Section
2.4(a)(v) of the Purchase Agreement is amended and restated to read in its entirety as
follows:
“Adjustment Amount” means $775,000.
3. Amendment to Section 2.4(a)(vi). A new sentence shall be added to the end of
Section 2.4(a)(vi) of the Purchase Agreement to read as follows:
No amount payable by Seller pursuant to the Executive Agreement shall be included in
the Cut-Off Date Working Capital Statement or the calculation of Final Working
Capital.
4. Amendment to Section 6.15(a). The last four sentences of Section 6.15(a) of the
Purchase Agreement are hereby deleted in their entirety and the following sentences are
substituted in lieu thereof:
For the avoidance of doubt, in the event that (x) all or any portion of the
Financing structured as a Note Offering has not been consummated, (y) all closing
conditions contained in Article VIII (other than Section 8.7) shall
have been satisfied or waived and (z) the Bridge Facility (or alternative bridge
financing obtained in accordance with this Section 6.15(a)) is available on
the terms and conditions described in the Commitment Letters (or replacements
thereof as contemplated by this Section 6.15(a)), then Buyer shall close
such bridge facility and borrow amounts thereunder sufficient to consummate the
transactions contemplated by this Agreement no later than March 13, 2006. Buyer
represents and warrants to Seller that it has received confirmation from its lenders
under the Commitment Letters that (A) the “March 20, 2006” date on page 8 of the
Commitment Letters has been changed to “April 3, 2006” and (B) in the event that an
offering memorandum meeting the requirements of the Commitment Letters is made
available to the Lead Arranger and potential investors on or before February 17,
2006, the Lenders will deem such offering memorandum to have been made available not
later than 21 days prior to the “Closing Date” (as defined in the Commitment
Letters). Buyer covenants and agrees (1) to provide promptly to Seller evidence of
such confirmation from Buyer’s lenders and (2) to make available to the Lead
Arranger and potential investors on or before February 17, 2006 an offering
memorandum meeting the requirements of the Commitment Letters.
5. Amendment to Section 6.15(b). The first sentence of Section 6.15(b) of the
Purchase Agreement is hereby amended by redesignating clause (ix) as clause (x) and adding
the following clause (ix) immediately following clause (viii):
(ix) in the case of a Note Offering, executing and delivering to Banc of America
Securities LLC and Citigroup Global Markets Inc. a certificate substantially in the
form of Exhibit N hereto,
6. Amendment to Section 7.3. A new Section 7.3(l) of the Purchase Agreement
is hereby added to read as follows:
Buyer hereby consents to the execution and delivery by Seller of the Executive
Agreement. In addition, the obligations of the parties contained in Exhibit
7.3(l) with respect to the Executive Agreement are hereby incorporated by
reference herein.
7. Amendment to Section 11.(e). Section 11.1(e) of the Purchase Agreement is hereby
amended by changing the date “March 20, 2006” each time it appears in such Section to “April
3, 2006.”
8. Amendment to Section 11.1(f). Section 11.1(f) of the Purchase Agreement is
hereby amended and restated to read in its entirety as follows:
(f) by Seller at any time after March 8, 2006; provided, that in no
event shall Seller have the right to terminate this Agreement pursuant to this
Section 11.1(f) at any time after the pricing of the Note Offering shall
have occurred and prior to the settlement date therefor stated in the offering
materials dated the date of pricing.
9. Amendment to Exhibit 2.6(a). Exhibit 2.6(a) to the Purchase Agreement is hereby
amended by deleting item 25 in its entirety and replacing such item 25 by the words
“intentionally omitted.”
10. Miscellaneous.
| (a) | Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of the State of New York. | ||
| (b) | Required Financial Information. Buyer acknowledges and agrees that Seller has performed in all material respects Seller’s requirements to deliver Required Financial Information to Buyer. | ||
| (c) | Capitalized Terms. Capitalized terms that are used but not defined herein shall have the meanings specified in the Purchase Agreement. | ||
| (d) | Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be considered an original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by each of the parties hereto and delivered to Seller and Buyer. |
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day
and year first above written.
| SAKS INCORPORATED |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
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| THE BON-TON STORES, INC. |
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| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
Signature Page to Amendment to Purchase Agreement
