Exhibit 10.28
FIFTH AMENDMENT
FIFTH AMENDMENT dated as of July 9, 1999 (this "AMENDMENT"), by and
among LAMONTS APPAREL, INC., a Delaware corporation (the "BORROWER"), having its
principal place of business at 00000 Xxxxxxx Xxxx X.X., Xxxxxxxx, XX 00000,
BANKBOSTON, N.A. (f/k/a "The First National Bank of Boston"), a national banking
association with its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "BANK"), and BANKBOSTON, N.A. (f/k/a "The First National Bank of
Boston"), as Agent (the "AGENT") amending certain provisions of the Amended and
Restated Debtor in Possession and Exit Financing Loan Agreement by and among the
Borrower, the Bank, and the Agent dated as of September 26, 1997, as previously
amended by a First Amendment dated as of January 8, 1998, a Second Amendment
dated as of April 1, 1998, a Third Amendment dated as of September 23, 1998, and
a Fourth Amendment dated as of April 13, 1999 (as so amended, the "LOAN
AGREEMENT"). Terms not otherwise defined herein which are defined in the Loan
Agreement shall have the respective meanings herein assigned to such terms in
the Loan Agreement.
WHEREAS, the Borrower has requested that the Bank agree to amend the
terms of the Loan Agreement in certain respects; and
WHEREAS, the Bank is willing to amend the terms of the Loan Agreement
in such respects, upon the terms and subject to the conditions contained herein;
and
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Loan Agreement, herein 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 DEFINITIONS. Section 1.1 of the Loan Agreement
is hereby amended as follows:
DEFINITION OF "STORE CREDIT CARD PROGRAM DOCUMENTS." Section 1.1 of the
Loan Agreement is amended by deleting the definition of the term "STORE CREDIT
CARD PROGRAM DOCUMENTS" and inserting the following in place thereof:
"STORE CREDIT CARD PROGRAM DOCUMENTS. The Revolving Credit
Program Agreement dated as of June 1, 1999, by and between the Borrower
and Green Tree Financial Corporation, a Delaware
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corporation, its successors and assigns, a copy of which has been
delivered to the Agent, evidencing and relating to the Store Credit
Card Program, and, to the extent each is approved by the Agent in
writing, any amendments, modifications, and successor or substitute
documents with respect thereto, evidencing or relating to the Store
Credit Card Program as in effect from time to time."
Section 2. AMENDMENT TO SECTION 10.2 OF THE LOAN AGREEMENT. Section
2(b)(vii) of the Loan Agreement is hereby deleted and the following inserted in
place thereof:
"(vii) unsecured Indebtedness in respect of the
presently-existing limited recourse arrangements under the Store Credit
Card Program Documents."
Section 3. REPRESENTATIONS, WARRANTIES AND COVENANTS; NO DEFAULT;
AUTHORIZATION. The Borrower hereby represents, warrants and covenants to the
Agent as follows:
(a) Each of the representations and warranties of the Borrower
contained in the Loan Agreement or in any other Loan Documents was true and
correct as of the date as of which it was made and is true and correct in all
material respects as of the date of this Amendment except to the extent such
representations and warranties expressly related to a prior date (in which case
they shall be true and correct as of such earlier date); and no Default or Event
of Default has occurred and is continuing as of the date of this Amendment;
(b) This Amendment has been duly authorized, executed and delivered by
the Borrower; and
(c) This Amendment shall constitute the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms.
Section 4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to satisfaction of the following conditions on or
prior to July 9, 1999:
(a) This Amendment shall have been duly executed and delivered by
the Borrower, the Banks and the Agent.
(b) The Agent shall have received written confirmation of approval
of this Amendment executed by the Surety and written ratification of the
Supplemental Guaranty (as defined in the Purchase and Guaranty Agreement)
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executed by the Guarantor (as defined in the Purchase and Guaranty Agreement),
each in form and substance satisfactory to the Agent.
(c) A Direct Collection Letter, in form and substance satisfactory
to the Agent shall have been duly executed and delivered by the Borrower, the
Agent, and Green Tree Financial Corporation.
(d) The Agent shall have received such other documents or
instruments relating hereto as the Agent shall have reasonably requested.
Section 5. RATIFICATION, ETC. Except as expressly amended hereby, the
Loan Agreement, the other Loan Documents, and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects.
All references in the Loan Agreement or any related agreement or instrument to
the Loan Agreement shall hereafter refer to the Loan Agreement as amended
hereby.
Section 6. NO OTHER CHANGES; NO IMPLIED WAIVER. Except as expressly
provided herein, the Loan Agreement and the other Loan Documents shall be
unaffected hereby and shall continue in full force and effect, and nothing
contained herein shall constitute a waiver by the Agent or any Bank of any
right, remedy, Default, or Event of Default, or impair or otherwise affect any
Obligations, any other obligations of the Borrower, or any right of the Agent or
any Bank consequent thereon.
Section 7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL FOR ALL PURPOSES BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAW).
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as a sealed instrument as of the date first above written.
LAMONTS APPAREL, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: EVP & CFO
BANKBOSTON, N.A., in its respective
capacities as a Revolving Credit Bank
and Agent
By: /s/ X. X. Xxxxxxx
--------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
BANKBOSTON, N.A., as Term Loan
Lender
By: /s/ X. X. Xxxxxxx
--------------------------------
Name: X.X. Xxxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Revolving Credit Bank
By: /s/ Xxxxx Xx
--------------------------------
Name: Xxxxx Xx
Title: AVP
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CONFIRMATION OF THE SURETY
AND
OF THE GUARANTOR
The Surety hereby confirms approval of the foregoing amendment in all
respects and directs the Term Loan Lender to give its consent thereto. The
Guarantor (as defined in the Purchase and Guaranty Agreement) hereby ratifies
and confirms the Supplemental Guaranty (as defined in the Purchase and Guaranty
Agreement) in all respects, and agrees that the Supplemental Guaranty, after
giving effect to foregoing amendment, shall continue in full force and effect.
SPECIALTY INVESTMENT I LLC
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: CFO/Mgr
XXXXXX XXXXXXXX PARTNERS,
INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: CFO/EVP
