FIRST AMENDMENT
FIRST AMENDMENT dated as of November 8, 1996 (this "AMENDMENT"),
by and among LAMONTS APPAREL, INC., a Delaware corporation and a debtor and
debtor in possession under Chapter 11 of the Bankruptcy Code ("BORROWER"),
having its principal place of business at 00000 Xxxxxxx Xxxx X.X., Xxxxxxxx,
XX 00000, THE FIRST NATIONAL BANK OF BOSTON, a national banking association
with its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"BANK"), and THE FIRST NATIONAL BANK OF BOSTON, as Agent (the "AGENT")
amending certain provisions of the Debtor in Possession and Exit Financing
Loan Agreement by and among the Borrower, the Bank, and the Agent dated as of
June 4, 1996 (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 OF PREAMBLE TO THE LOAN AGREEMENT. The
third "WHEREAS" clause of the Loan Agreement is hereby amended by deleting
the figure "$32,000,000".
Section 2. AMENDMENT OF SECTION 1.1 OF THE LOAN AGREEMENT; DIP
NOTE.
(a) Section 1.1 of the Loan Agreement is hereby amended by
deleting clauses (a) and (b) appearing in the definition of "DIP Commitment",
and substituting therefor the following:
"(a) $32,000,000 during the period commencing on the
Effective Date and ending on November 7, 1996, $35,000,000 during the
period commencing November 8, 1996, and ending on December 15, 1996,
and $32,000,000 during the period commencing December 16, 1996 and at
all applicable times thereafter; and (b) the amount approved in the
Financing Order, as such amount may be reduced from time to time or
terminated hereunder."
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(b) From and after the effectiveness of this Amendment, the term
"Financing Order" as referred to in the Loan Documents shall refer to the
Financing Order as in effect immediately prior to this Amendment, as
supplemented by the interim order (the "Interim Amendment Order") and final
order of the Bankruptcy Court approving this Amendment, each to be
satisfactory in form and substance to the Agent.
(c) In furtherance of the foregoing, each DIP Note is hereby
amended by changing the amount "$32,000,000" to "$35,000,000" in each place
such amount appears, and by changing the phrase "Thirty-Two Million" to
"Thirty-Five Million", in each place such amount appears, in each DIP Note.
(d) The following new definitions are added to Section 1.1 of the
Loan Agreement in the appropriate location in the alphabetical sequence:
"FINAL AMENDMENT ORDER: See Section 11(a)(xxi)."
"INTERIM AMENDMENT ORDER: See the First Amendment, dated as of
November 8, 1996, to this Agreement."
Section 3. AMENDMENT OF SECTION 8 OF THE LOAN AGREEMENT.
Section 8 of the Loan Agreement is amended by deleting subsection
(t) thereof in its entirety and substituting therefor the following:
"(t) On and after the Effective Date, the Financing Order
has been entered, has not been reversed, stayed, or (except as
provided in the Interim Amendment Order and the Final Amendment Order,
or with the written approval of the Agent) modified, amended or
supplemented, and remains in full force and effect."
Section 4. AMENDMENT OF SECTION 11.1(a) OF THE LOAN AGREEMENT.
Section 11.1(a) of the Loan Agreement is amended by deleting
subsection (xxi) thereof in its entirety and substituting therefore the
following:
"(xxi) in the case of the Interim Amendment Order having
been initially entered on an interim basis by the Bankruptcy Court,
the Interim Amendment Order does not, within 15 days after the date of
entry of the Interim Amendment Order, become or constitute a final
order in the Case ("Final Amendment Order") (pursuant to an order of
the Bankruptcy Court, entered upon requisite and proper prior notice
of at least fifteen (15) days to the required parties in interest in
the Case and a related final hearing in the Case, if required by the
Bankruptcy Court, with respect to the matters set
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forth in the Interim Amendment Order, held under Section 364(c) of the
Bankruptcy Code and Bankruptcy Rule 4001(c)(2)), authorizing
extensions of credit under this Agreement in the full maximum amount
of the Total DIP Commitment, authorizing and approving all matters
initially set forth in the Interim Amendment Order without any
modifications or amendments thereto or reversal thereof, otherwise in
form and substance satisfactory to the Agent and the Agent's Special
Counsel, and in full force and effect."
Section 5. 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 is in full force and effect;
(c) On and after the date hereof, the Interim Amendment Order has
been entered, has not (except for modifications approved by the Agent) been
reversed, modified, amended or stayed, and remains in full force and effect;
and
(d) Upon entry of the Interim Amendment Order, and the execution
and delivery of this Amendment by the respective parties hereto, this
Amendment shall constitute the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
Section 6. CONDITIONS TO EFFECTIVENESS. The effectiveness of
this Amendment shall be subject to satisfaction of the following conditions:
(a) This Amendment shall have been duly executed and delivered by
the Borrower, the Banks, and the Agent.
(b) The Agent shall have received copies, certified by a duly
authorized officer of the Borrower as of the date hereof, of the resolution
of the board of directors of the Borrower approving the transactions
contemplated hereby and the execution and delivery of this Amendment, and as
to the titles, incumbency, and specimen signatures of the officers signing
this Amendment and the documents relating thereto.
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(c) The Agent shall have received a certificate of a duly
authorized officer of the Borrower (i) certifying that no amendments to the
certificate or articles of incorporation or organization of the Borrower have
been undertaken since such documents were last delivered to the Agent on the
Effective Date, and (ii) certifying that no amendments to the by-laws of the
Borrower have been undertaken since such documents were last delivered to the
Agent on the Effective Date.
(d) The Agent shall have received evidence that the Bankruptcy
Court shall have entered the Interim Amendment Order, which must be
satisfactory in all respects to the Agent and the Agent's Special Counsel,
and such Interim Amendment Order shall be in full force and effect and shall
not have been reversed, modified, amended or stayed in any respect. If the
Interim Amendment Order is the subject of a pending appeal in any respect,
none of such Interim Amendment Order, the making of the Loans, the issuance,
extension or renewal of any Letters of Credit, or the performance by the
Borrower of any of its obligations under any of the Loan Documents shall be
the subject of a presently effective stay pending appeal. The Borrower, the
Agent and the Banks shall be entitled to rely in good faith upon the Interim
Amendment Order notwithstanding any objection thereto or appeal therefrom by
any interested party. The Borrower, the Agent and the Banks shall be
permitted and required to perform their respective obligations in compliance
with this Amendment and the Loan Agreement notwithstanding any such objection
or appeal unless the Interim Amendment Order has been stayed by a court of
competent jurisdiction.
(e) The Agent shall have received from Borrower the most recently
required Borrowing Base Report.
(f) The Agent shall have received a favorable legal opinion
addressed to the Banks and the Agent, dated as of the date hereof, in form
and substance satisfactory to the Agent, from Xxxx, Xxxxxxx & Cleveland,
counsel to the Borrower.
(g) The Agent shall have received such other documents or
instruments relating hereto as the Agent shall have reasonably requested.
Section 7. 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 or the DIP Notes shall hereafter refer to
the Loan Agreement or the DIP Notes as amended hereby.
Section 8. 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
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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 9. 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 10. 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), AND,
PRIOR TO THE EXIT FACILITY DATE, BUT ONLY TO THE EXTENT APPLICABLE, THE
PROVISIONS OF THE BANKRUPTCY CODE.
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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.
debtor and debtor in possession
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice Chairman
THE FIRST NATIONAL BANK
OF BOSTON, for itself and as Agent
By: /s/ Xxxxxxx X. Xxxxxxx Xx.
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Name: Xxxxxxx X. Xxxxxxx Xx.
Title: Vice President
