EXHIBIT 10.2
AMENDMENT NO. 1
to
Note Purchase Agreement
THIS AMENDMENT NO. 1 (the "Amendment") to the Note Purchase
Agreement is entered into as of October 22, 2004 by and among The Bon-Ton
Receivables Partnership, L.P., as Transferor (the "Transferor"), The Bon-Ton
Department Stores, Inc., as Servicer (the "Servicer"), Falcon Asset
Securitization Corporation and Charta, LLC, as Conduit Purchasers, Bank One, NA
("Bank One"), and Citicorp North America, Inc. ("CNAI"), as Managing Agents,
Bank One and Citibank, N.A. as Committed Purchasers and Bank One, as Class A
Agent. All capitalized terms used but not otherwise defined herein shall have
the meanings assigned thereto in the Indenture, the 2004-1 Supplement or the NPA
(each as defined below).
PRELIMINARY STATEMENTS
A. Bon-Ton Receivables Master Note Trust (the "Issuer") and the
Indenture Trustee are parties to that certain Master Indenture dated as of
January 30, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, the "Indenture"), together with that certain Indenture Supplement
thereto, dated as of January 30, 2004 (as amended, restated, supplemented or
otherwise modified from time to time and hereby, the "2004-1 Supplement")
pursuant to which the Issuer issued the Series 2004-1 Notes.
B. The parties hereto are parties to that certain Note Purchase
Agreement dated as of January 30, 2004 (as amended, restated, supplemented or
otherwise modified from time to time and hereby, the "NPA"), pursuant to which
the Purchasers purchased the 2004-1 Notes.
C. The Transferor has requested, and the other parties to the NPA
have agreed, to extend the Purchase Expiration Date in accordance with the terms
hereof.
NOW, THEREFORE, in consideration of the premises set forth above,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to NPA. Subject to the satisfaction of the
conditions precedent set forth in Section 2 below, each of the parties to the
NPA agrees that Section 1.01 of the NPA is hereby amended by:
a) deleting the date "October 22, 2004" from the definition of
"Purchase Expiration Date" and inserting "October 21, 2005" in
lieu thereof; and
b) adding "the Interest Rate Swap Agreements," immediately
after "the Receivables Purchase Agreement" in the definition
of "Series Documents".
SECTION 2. Conditions Precedent. This Amendment shall become
effective and be deemed effective upon receipt by the Indenture Trustee and each
Managing Agent of copies of this Amendment duly executed by each of the parties
hereto. This Amendment shall become effective notwithstanding the failure to
satisfy any condition or requirement for the amendment of the NPA and each of
the parties hereto agrees that any such condition or requirement is hereby
waived.
SECTION 3. Covenants, Representations and Warranties.
(a) Upon the effectiveness of this Amendment, each of the Transferor
and the Servicer hereby reaffirms all covenants, representations and warranties
made by it in the NPA and the other Transaction Documents, as applicable, and
agrees that all such covenants, representations and warranties (except to the
extent such representations and warranties expressly relate to a different date)
shall be deemed to have been re-made as of the date of this Amendment.
(b) Each of the Transferor and the Servicer hereby represents and
warrants as to itself that the NPA and the other Transaction Documents to which
it is a party, constitute the legal, valid and binding obligations of such
Person and are enforceable against such Person in accordance with their terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(c) Each of the Transferor and the Servicer hereby represents and
warrants that, as of the effective date of this Amendment, no event shall have
occurred and be continuing which (i) constitutes a Pay Out Event or an Event of
Default or (ii) solely with the giving of notice or the expiration of any
applicable grace period, would constitute a Pay Out Event or an Event of Default
SECTION 4. Reference to and Effect on NPA. Upon the effectiveness of
this Amendment, each reference in the NPA to "this Agreement," "hereunder,"
"hereof," "herein," "hereby" or words of like import shall mean and be a
reference to the NPA as amended hereby, and each reference to the NPA in any
other related document or agreement shall mean and be a reference to the NPA as
amended hereby.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. 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 and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first set forth above by their respective duly
authorized officers.
THE BON-TON RECEIVABLES
PARTNERSHIP, L.P.,
as Transferor
By: BTRGP, Inc., its
General Partner
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
THE BON-TON DEPARTMENT STORES,
INC., as Servicer
By: /s/ H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: H. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
Signature Page to Amendment No. 1
FALCON ASSET SECURITIZATION
CORPORATION
as Conduit Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signer
BANK ONE, NATIONAL ASSOCIATION,
as Class A Agent and
as a Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NATIONAL ASSOCIATION,
as a Committed Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Amendment No. 1
CHARTA, LLC,
as a Conduit Purchaser
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as a Managing Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as a Committed Purchaser
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Amendment No. 1
