Exhibit 10.2
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
FOURTH AMENDMENT, dated as of September 9, 1998, 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 are used herein as therein defined); and
WHEREAS, the Borrowers desire to have the Lenders amend a certain
provision 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. Amendment and Waiver. The Lenders, the Agents, the
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Borrowers and the other Credit Parties hereby agree to the following amendment
to the Credit Agreement:
(a) Section 6.4(b) is hereby amended by adding the following after the
words "$250,000 to any employee" on the fourth line thereof: ", other than
Xxxxxxx Xxxxxxxx as to whom such maximum shall be $1,000,000,".
(b) The Agent and Lenders hereby further waive any Default or Event of
Default resulting from outstanding loans to Xxxxxxx Xxxxxxxx provided that
Section 6.4(b) as so amended is complied with.
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 exe-cuted by each Borrower, Credit Party, Agent and the
Requisite Lenders 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
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Credit 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 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
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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: Sr. Vice President & CFO
XXXX, XXXXXXX & XXXXXXXX CO., INC.
By: /s/ X.X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Sr. Vice President
THE BON-TON STORES OF LANCASTER, INC.
By: /s/ X.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/ X.X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Sr. Vice President & CFO
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
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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: Authorized Signatory
BANKBOSTON, N.A.
By: /s/ Xxxx X. Xxxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxxx, CPA
Title: Vice President
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/ X.Xxxxxxxx
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Name: X. Xxxxxxxx
Title: Sr. Vice President
FIRST UNION BANK, As successor to
CORESTATES BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
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MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ C. Xxxxxxx Xxxxxxxxx
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Name: C. Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
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
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Assistant Vice President
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