Exhibit 10.3(c)
SECOND AMENDMENT TO THE CREDIT AGREEMENT
SECOND AMENDMENT, dated as of September 23, 1997, among THE BON-TON
DEPARTMENT STORES, INC., XXXX, XXXXXXX & XXXXXXXX CO., 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, BANKBOSTON, N.A. as Collateral Agent and Lender 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 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 being 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;
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. Amendments. 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) The definition of "Fixed Asset Availability" in Annex A is hereby
amended by (i) changing the reference to "February 28, 1998" in clause (i)
thereof to "September 30, 1997" and (ii) changing the reference to "March 1,
1998" in clause (ii) thereof to "October 1, 1997". This amendment will result
in the Initial Adjustment Date pursuant to Section 1.5 of the Credit Agreement
being October 1, 1997.
(b) The definition of "Requisite Lenders" in Annex A is hereby amended by
deleting the parenthetical clause at the end thereof.
(c) Section 11.2(b)(v) is hereby amended to read as follows: "(v) except
as otherwise permitted herein or in the other Loan Documents, release any
Guaranty or release, or permit any Credit Party to sell or otherwise dispose of,
any Collateral with a value exceeding $5,000,000 in the aggregate (which action
shall be deemed to directly affect all Lenders);".
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 counterparts
of this Amendment executed by each Borrower, Credit Party, Agent and Lender or,
as to the Lenders, advice satisfactory to the Agents that such Lenders have
executed this Amendment.
SECTION 3. Representations and Warranties. The Borrowers and other Credit
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Parties hereby jointly and severally represent and warrant to the Lenders and
the Agents 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 4. Reference to and Effect on the Loan Documents. (a) Upon the
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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
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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 all
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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.
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.
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/ X.X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
XXXX, XXXXXXX & XXXXXXXX CO., INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Secretary
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THE BON-TON STORES OF LANCASTER, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Secretary
Other Credit Parties:
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THE BON-TON STORES, INC.
By: /s/ X X Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
THE BON-TON CORP.
By: /s/ X X Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
THE BON-TON NATIONAL CORP.
By: /s/ X X Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
THE BON-TON TRADE CORP.
By: /s/ X X Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Treasurer
Agents and Lenders:
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
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BANKBOSTON, N.A.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Assistant Secretary
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: AVP-Account Executive
CORESTATES BANK, N.A.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Sr. Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ C. Xxxxxxx Xxxxxxxxx
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Name: C. Xxxxxxx Xxxxxxxxx
Title: Banking Officer
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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