EXHIBIT 10.14(f)
FIFTH AMENDMENT TO THE CREDIT AGREEMENT
FIFTH AMENDMENT, dated as of April 7, 1999, 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 and Lender.
W I T N E S S E T H :
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WHEREAS, Xxxx, Xxxxxxx & Xxxxxxxx Co., Inc. have merged with and into
The Bon-Ton Department Stores, Inc.; and
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 amendment upon the terms and
subject to the conditions provided herein; and
WHEREAS, certain Lenders have assigned all or a portion of their
interest in the Loans to certain other Lenders, which assignment shall have
become effective immediately prior to the effectiveness of this amendment, and
the Commitment of each Lender is set forth next to its signature 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 Agents, the Borrowers and the
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other Credit Parties hereby agree to the following amendments to the Credit
Agreement:
(a) Section 1.3(b)(ii) is hereby amended by deleting the reference to
"Section 6.8" on the third line thereof and inserting in lieu thereof "Section
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6.8(a)-(g)),".
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(b) Section 1.5(a) is hereby amended by deleting the existing grid in
its entirety and amending it as follows:
"If Interest Level of
Coverage Ratio is: Applicable Margins:
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Greater than 4.5:1.0 I
Greater than 4.0:1.0 but less than or equal to 4.49 II
Greater than 3.5:1.0 but less than or equal to 3.99 III
Greater than 2.75:1.0 but less than or equal to 3.49 IV
Less than 2.74 V
Level I Level II Level III Level IV Level V
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Applicable Revolver
Index Margin 0.00% 0.00% 0.25% 0.50% 0.75%
Applicable Revolver
LIBOR Margin 1.25% 1.50% 1.75% 2.00% 2.25%
Applicable L/C
Margin 1.25% 1.50% 1.50% 1.50% 1.50%
Applicable Unused
Facility Fee 0.25% 0.25% 0.375% 0.375% 0.375%"
(c) Section 6.3(a)(vii), relating to interest rate swaps, is hereby
amended by deleting the words "$50 million" and inserting in lieu thereof "$100
million".
(d) Section 6.4(b) is hereby amended by deleting ", other than to
Xxxxxxx Xxxxxxxx as to whom such maximum shall be $1,000,000" and inserting in
lieu thereof ", other than to Xxxxxxx Xxxxxxxx as to whom such maximum shall be
$2,000,000".
(e) (i) Section 6.8 is hereby amended by deleting the word "and"
immediately prior to "(g)" and inserting a comma in lieu thereof, and adding the
following clause (h) at the end of the first sentence:
"and (h) the sale, transfer, conveyance or other disposition of
Equipment, Fixtures or Real Estate by Borrowers in connection with the
sale of a store location up to an aggregate amount equal to
$30,000,000".
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(ii) The last sentence of section 6.8 is amended by deleting the word
"and" between "clause (f)" and "clause (g)" and inserting a comma in lieu
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thereof, and inserting the words "and clause (h)" after "clause (g)".
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(f) Section 9.2 is hereby amended as follows: (i) the first sentence
is amended by deleting "GE Capital and FNBB are" and inserting in lieu thereof
"GE Capital is", and by deleting ", respectively" and (ii) the third sentence is
deleted in its entirety.
(g) Section 9.4 is hereby deleted in its entirety and the following
is inserted in lieu thereof:
"GE Capital and its Affiliates. With respect to its Commitments
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hereunder, GE Capital shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender and may
exercise the same as though it were not Agent hereunder; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated,
include GE Capital in its individual capacity. GE Capital and its
Affiliates may lend money to, invest in, and generally engage in any
kind of business with, any Credit Party, any of its Affiliates and any
Person who may do business with or own securities of any Credit Party
or any such Affiliate, all as if GE Capital was not Agent and without
any duty to account therefor to Lenders. GE Capital and its
Affiliates may accept fees and other consideration from any Credit
Party for services in connection with this Agreement or otherwise
without having to account for the same to Lenders. Each Lender
acknowledges the potential conflict of interest between GE Capital as
a Lender and GE Capital as Agent."
(h) Section 11.14 is hereby amended by deleting it in its entirety
and inserting in lieu thereof the following:
"11.14 Press Releases Each Credit Party executing this
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Agreement agrees that neither it nor its Affiliates will in the future
issue any press releases or other public disclosure using the name of
GE Capital or its Affiliates or referring to this Agreement, the other
Loan Documents or the transactions contemplated hereby or thereby
without at least two (2) Business Days' prior notice to GE Capital and
without the prior written consent of GE Capital unless (and only to
the extent that) such Credit Party or Affiliate is required to do so
under law and then, in any event, such Credit Party or Affiliate will
consult with GE Capital before issuing such press release or other
public disclosure. Each Credit Party consents to the publication by
Agents or any Lender of a tombstone or similar advertising material
relating to the financing transactions contemplated by this
Agreement."
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(i) The definition of "Collateral Agent" in Annex A is hereby amended
by deleting it in its entirety and inserting the following in lieu thereof:
"Collateral Agent shall mean GE Capital or its successor
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appointed puruant to Section 9."
(j) Clause (a) of the definition of "Commitment Termination Date" in
Annex A is hereby amended by changing the date to "April 15, 2004".
(k) The first clause (iii) and clause (iv) of the definition of
"Fixed Asset Availability" in Annex A are hereby amended by deleting them in
their entirety and inserting in lieu thereof the following:
"and (iii) on March 1, 1999 and thereafter, up to 33 1/3% of Maximum
Fixed Asset Availability."
(l) Paragraph (a) of Annex B is hereby amended by changing the
definition of "L/C Sublimit" to "Twenty-Five Million Dollars ($25,000,000)".
(m) Paragraph (d) of Annex B is hereby amended by deleting subsection
(y) in its entirety and inserting the following in lieu thereof:
"(y) for each month during which any Letter of Credit Obligation shall
remain outstanding, a fee (the "Letter of Credit Fee") in an amount
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equal to the Applicable L/C Margin set forth in Section 1.5(a)
multiplied by the maximum amount available from time to time to be
drawn under the applicable Letter of Credit."
(n) Paragraph (e) of Annex B is hereby amended by inserting the
following at the end of the first sentence:
"; provided, however, that Borrower Representative need not obtain
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approval and need not provide notice to Administrative Agent for the
incurrence of a Letter of Credit Obligation if (i) the issuance of
such Letter of Credit Obligation would not violate any provision of
this Annex B, (ii) the amount of such Letter of Credit Obligation is
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less than $300,000 and (iii) the aggregate amount of all Letter of
Credit Obligations issued in such week is less than $300,000. For
administrative purposes, by Monday of the following week, the L/C
Issuer shall distribute a summary sheet to Administrative Agent
stating the amount requested during such week and the date of all
Letter of Credit Obligations issued during such week."
(o) Paragraph 1(b) of Annex F is hereby amended by deleting the
existing language in its entirety and inserting the following in lieu thereof:
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"(b) To the Agents, no later than ten (10) Business Days after the
end of each Fiscal Month, a Borrowing Base Certificate with respect to
each Borrower as of the close of business on the last day of the
immediately preceding Fiscal Month, accompanied by such supporting
detail and documentation as shall be requested by Agents in their
reasonable discretion; provided, however, that if Net Borrowing
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Availability shall equal an amount less than $25,000,000 for fourteen
(14) consecutive days or more, Borrowers shall deliver or cause to be
delivered, no later than Tuesday of each week or less frequently as
may otherwise be requested by Agents, a Borrowing Base Certificate
with respect to each Borrower as of the close of business on the
immediately preceding Saturday, in each case accompanied by such
supporting detail and documentation as shall be requested by Agents in
their reasonable discretion, until the earlier of such time as (i) Net
Borrowing Availability shall equal an amount greater than $25,000,000
for at least twenty-eight (28) consecutive days or (ii) Agents shall
determine otherwise, at which time Borrowers shall deliver a Borrowing
Base Certificate solely on a monthly basis as provided in the first
clause of this sentence;"
(p) Paragraph 2 of Annex F is hereby amended by deleting the existing
language in its entirety and inserting the following in lieu thereof:
"2. During any Fiscal Year Borrowers shall pay for all costs and
expenses of up to two commercial finance field audits conducted by
Agents and at least one limited-scope Inventory appraisal and, if at
any time Net Borrowing Availability is less than $35,000,000 for more
than ten (10) consecutive days in a Fiscal Month, for the remainder of
such Fiscal Year Borrowers shall pay for all costs and expenses of up
to one full-scope Inventory appraisal for such Fiscal Year, conducted
by an appraiser selected by Agents, each of the foregoing in form and
substance satisfactory to Agents."
SECTION 2. Conditions to Effectiveness. This Amendment shall become
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effective as of the date hereof when the Agents shall have received (a)
counterparts of this Amendment executed by each Borrower, Credit Party, Agent
and each Lender or, as to the Lenders, advice satisfactory to the Agents that
each Lender has executed this Amendment, (b) an amendment fee equal to 0.15% of
the Commitments (i.e., $300,000), to be paid to the Lenders based on their Pro
Rata Shares and (c) receipt by the Agents of the amendments to the GE Capital
Fee Letter and the FNBB Fee Letter, in form and substance acceptable to GE
Capital, and of all fees payable on the effective date hereof as set forth in
the amendment to the GE Capital Fee Letter.
SECTION 3. Representations and Warranties. The Borrowers and other
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Credit Parties hereby jointly and severally represent and warrant to the Lenders
and the Agents as follows:
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(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 4. Reference to and Effect on the Loan Documents. (a) Upon
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the effectiveness of this Amendment, on and after the date hereof, each
reference in the Credit Agreement and the other Loan Documents to "this
Agreement," "hereunder," "hereof," "herein," or words of like import, 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 Agents under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs and Expenses. The Borrowers agree to pay on demand
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all costs, fees and expenses of the Agents 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 Agents with respect thereto.
SECTION 6. Execution in Counterparts. This Amendment may be executed
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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.
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SECTION 7. Governing Law. This Amendment shall be governed by and
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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:
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THE BON-TON DEPARTMENT STORES, INC.
By: /s/ H. Xxxx Xxxxxxxxx
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Name H. Xxxx Xxxxxxxxx
Title: Treasurer
THE BON-TON STORES OF LANCASTER, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Sr. Vice President
OTHER CREDIT PARTIES:
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THE BON-TON STORES, INC.
By: /s/ H. Xxxx Xxxxxxxxx
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Name: H. Xxxx Xxxxxxxxx
Title Treasurer
THE BON-TON CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
THE BON-TON NATIONAL CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
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THE BON-TON TRADE CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
AGENTS AND LENDERS:
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GENERAL ELECTRIC CAPITAL CORPORATION
Revolving Loan Commitment (including a Swing Line Commitment of $20,000,000):
$48,000,000
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
BANKBOSTON, N.A.
Revolving Loan Commitment $25,000,000
By: /s/ Xxxx X. Xxxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxxx, CPA
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
Revolving Loan Commitment $25,000,000
By: /s/ Xxxxx X'Xxxx
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Name: Xxxxx X'Xxxx
Title: AVP
FIRST UNION NATIONAL BANK, as successor
to CORESTATES BANK, N.A.
Revolving Loan Commitment $25,000,000
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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MANUFACTURERS AND TRADERS TRUST COMPANY
Revolving Loan Commitment $20,000,000
By: /s/ Xxxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
FOOTHILL CAPITAL CORPORATION
Revolving Loan Commitment $30,000,000
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: V.P.
FLEET BUSINESS CREDIT CORPORATION
Revolving Loan Commitment $11,000,000
By: /s/ Xxxxxx Xxxxxxx
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Name:
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
Revolving Loan Commitment $16,000,000
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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