<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 15, 1999
REGISTRATION NO. 333-44311
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
POST EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
___________
LAMONTS APPAREL, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 5651 75-2076160
(State or other jurisdiction (Primary standard industrial (I.R.S. employer
of incorporation or classification code number) identification no.)
organization)
___________
LAMONTS APPAREL, INC. DEBBIE A. BROWNFIELD
12413 WILLOWS ROAD N.E. LAMONTS APPAREL, INC.
KIRKLAND, WASHINGTON 98034 12413 WILLOWS ROAD N.E.
(425) 814-5700 KIRKLAND, WASHINGTON 98034
(Address, including zip code, and (425) 814-5461
telephone number, including area code, (Name, address, including zip code, and
of registrant's principal executive telephone number, including area code,
offices) of agent for service)
___________
COPIES TO:
HENRY LESSER, ESQ.
HELLER EHRMAN WHITE & McAULIFFE
525 UNIVERSITY AVENUE
PALO ALTO, CA 94301-1900
TELEPHONE (650) 324-7000
FACSIMILE (650) 324-0638
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
At any time and from time to time after the effective date of this Registration
Statement.
___________
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] No. 333-44311
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
___________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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Pursuant to Rule 462(d), this post effective amendment is filed solely for the
purpose of filing additional exhibits.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
*2.1 Modified and Restated Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code (incorporated by reference from Exhibit 99.7 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on December 16, 1997).
*2.2 Supplemented and Restated Disclosure Statement (As Amended) re Debtor's
Plan of Reorganization Under Chapter 11 of the Bankruptcy Code
(incorporated by reference from Exhibit 99.8 of Quarterly Report on
Form 10-Q of the Registrant as filed with the Commission on December
16, 1997).
*3.1 Second Restated Certificate of Incorporation of the Registrant.
*3.2 Amended and Restated By-laws of the Registrant (as amended through July
2, 1999). (incorporated by reference from Exhibit 3 (ii) of Form 8-K of
the Registrant as filed with the Commission on July 6, 1999).
*4.1 Specimen Class A Common Stock certificate.
*4.2 Specimen Class B Common Stock certificate.
*4.3 Warrant Agreement dated January 31, 1998 between the Registrant and
Norwest Bank Minnesota, N.A., as Warrant Agent (incorporated by
reference from Exhibit 4 of the Company's Registration Statement on
Form 8-A, File No. 000-15542, filed with the Commission on February 2,
1998).
*4.4 Warrant Agreement dated January 31, 1998 between the Registrant and
Specialty Investment I LLC (incorporated by reference from Exhibit 5 of
Lamonts' Registration Statement on Form 8-A, File No. 000-15542, filed
with the Commission on February 2, 1998).
*4.5 Warrant Agreement dated January 31, 1998 between the Registrant and
Gordian Group, L.P. (incorporated by reference from Exhibit 4.6 of
Lamonts' Registration Statement on Form S-8, File No. 333-45455, filed
with the Commission on February 2, 1998).
*4.6 Form of Warrant Agreement dated January 31, 1998 between Registrant and
each of Alan R. Schlesinger, Loren R. Rothschild, Debbie A. Brownfield,
E.H. Bulen and Gary Grossblatt (incorporated by reference from Exhibit
6 of Lamonts' Registration Statement on Form 8-A, File No. 000-15542,
filed with the Commission on February 2, 1998).(1)
*4.7 Rights Agreement dated January 12, 1999, between the Registrant and
Norwest Bank Minnesota, N.A. (incorporated by reference from Exhibit
4.1 of Current Report on Form 8-K of the Registrant as filed with the
Commission on January 13, 1999)
*4.8 Certificate of Designation, Preferences and Rights of Series RP
Preferred Stock, dated January 12, 1999 (incorporated by reference from
Exhibit 4.8 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999).
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality
of the common stock and warrants.
*10.1 Standard Service Agreement dated February 13, 1989 between Frederick
Atkins, Incorporated and the Registrant, as amended October 3, 1989 and
February 5, 1990.
*10.2 Intentionally omitted.
*10.3 Form of Indemnification Agreement dated October 30, 1992 between the
Registrant and each of Alan R. Schlesinger, Loren R. Rothschild and
Debbie A. Brownfield (incorporated by reference from Exhibit 10.22 of
Current Report on Form 8-K of the Registrant as filed with the
Commission on November 13, 1992).(1)
*10.4 Intentionally omitted.
*10.5 Intentionally omitted.
*10.6 Employment Agreement dated April 18, 1995 between the Registrant and
Alan R. Schlesinger (incorporated by reference from Exhibit 10.5 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on April 21, 1995).(1)
*10.7 Employment Agreement dated April 18, 1995 between the Registrant and
Loren R.
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Rothschild (incorporated by reference from Exhibit 10.6 of Quarterly
Report on Form 10-Q of the Registrant as filed with the Commission on
April 21, 1995).(1)
*10.8 License Agreement dated May 25, 1995 between the Registrant and Shoe
Corporation of America (incorporated by reference from Exhibit 10.2 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on June 12, 1995).
*10.9 Computer Services Agreement dated February 1, 1996 between the
Registrant and Infotech Corporation (incorporated by reference from
Exhibit 10.37 of Quarterly Report on Form 10-Q of the Registrant as
filed with the Commission on May 3, 1996).
*10.10 Loan and Security Agreement dated June 4, 1996 between First National
Bank of Boston and the Registrant (incorporated by reference from
Exhibit 10.1 of Quarterly Report on Form 10-Q of the Registrant as
filed with the Commission on June 18, 1996).
*10.11 Depository Account Agreement dated June 4, 1996 among the Registrant,
BankBoston and Bank of America, N.W. N.A. (d/b/a Seafirst Bank).
*10.12 Waiver dated August 3, 1996 between First National Bank of Boston and
the Registrant (incorporated by reference from Exhibit 10.1 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on September 16, 1996).
*10.13 First Amendment dated November 8, 1996 to Loan and Security Agreement
dated June 4, 1996 between First National Bank of Boston and the
Registrant (incorporated by reference from Exhibit 10.1 of Quarterly
Report on Form 10-Q of the Registrant as filed with the Commission on
December 17, 1996).
*10.14 Amendment dated December 9, 1996 to the Credit Card Plan Agreement
(incorporated by reference from Exhibit 10.19 of Annual Report on Form
10-K of the Registrant as filed with the Commission on May 2, 1997).
*10.15 Computer Services Agreement dated February 4, 1997 between the
Registrant and Affiliated Computer Services, Inc. (incorporated by
reference from Exhibit 10.25 of Annual Report on Form 10-K of the
Registrant as filed with the Commission on May 2, 1997).
*10.16 Second Amendment dated May 23, 1997 to Loan and Security Agreement
dated June 4, 1996 between the Registrant and Bank Boston, N.A. (f/k/a
The First National Bank of Boston) ("BankBoston") (incorporated by
reference from Exhibit 10.26 of Quarterly Report on Form 10-Q of the
Registrant as filed with the Commission on September 12, 1997).
*10.17 Non-Qualified Employee Stock Option Agreement dated January 31, 1998
between the Registrant and each of Alan R. Schlesinger, Loren R.
Rothschild, Debbie A Brownfield, E.H. Bulen and Gary A. Grossblatt.(1)
*10.18 Lamonts Apparel, Inc. 1998 Stock Option Plan.(1)
*10.19 Amended and Restated Employment Agreement dated January 31, 1998
between the Registrant and Alan R. Schlesinger.(1)
*10.20 Amended and Restated Employment Agreement dated January 31, 1998
between the Registrant and Loren R. Rothschild.(1)
*10.21 Amended and Restated Debtor in Possession and Exit Financing Loan
Agreement dated September 26, 1997 among the Registrant, certain
financial institutions and Bank Boston, as agent (incorporated by
reference from Exhibit 10.27 of Quarterly Report on Form 10-Q of the
Registrant as filed with the Commission on December 16, 1997).
*10.22 Grant of Registration Rights dated January 31, 1998 among the Company
and the parties listed on the signature pages thereto.
*10.23 Form of Indemnification Agreement dated January 31, 1998 between the
Registrant and each of Alan R. Schlesinger, Loren R. Rothschild,
Debbie A. Brownfield, E.H. Bulen, Gary A. Grossblatt, Paul M. Buxbaum,
Stanford Springel and John J. Wiesner.(1)
*10.24 First Amendment dated January 8, 1998, to Amended and Restated Debtor
in Possession and Exit Financing Loan Agreement dated September 26,
1997 among the Registrant, certain financial institutions and
BankBoston, as agent. (incorporated by reference from Exhibit 10.24 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on December 16, 1998).
*10.25 Second Amendment dated April 1, 1998, to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent. (incorporated by reference from Exhibit 10.25 of Quarterly
Report on Form 10-Q of the Registrant as filed with the Commission on
December 16, 1998).
*10.26 Third Amendment dated September 23, 1998, to Amended and Restated
Debtor in Possession and Exit Financing Loan Agreement dated September
26, 1997 among the Registrant, certain financial institutions and
BankBoston, as agent. (incorporated by reference from Exhibit 10.26 of
Quarterly Report on Form 10-Q
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<PAGE>
of the Registrant as filed with the Commission on December 16, 1998).
*10.27 Fourth Amendment dated April 13, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent. (incorporated by reference from Exhibit 10.19 of Annual Report
on Form 10-K of the Registrant as filed with the Commission on
April 30, 1999).
*10.28 Amended and Restated Employment Agreement dated April 19, 1999 between
the Registrant and Alan R. Schlesinger (incorporated by reference from
Exhibit 10.11 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999). (1)
*10.29 Amended and Restated Employment Agreement dated April 19, 1999 between
the Registrant and Loren R. Rothschild (incorporated by reference from
Exhibit 10.12 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999). (1)
*10.30 Form of Employment Agreement dated April 19, 1999 between the
Registrant and Debbie A. Brownfield, E.H. Bulen and Gary A. Grossblatt
(incorporated by reference from Exhibit 10.20 of Annual Report on Form
10-K of the Registrant as filed with the Commission on April 30, 1999).
(1)
10.31 Fifth Amendment dated July 9, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent.
10.32 Sixth Amendment dated July 31, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent.
*18.1 Letter re change in accounting principle (incorporated by reference
from Exhibit 18.1 of Quarterly Report on Form 10-Q of the Registrant as
filed with the Commission on June 15, 1999).
*21.1 Subsidiaries of the Registrant (incorporated by reference from Exhibit
22 of Registration Statement No. 33-68720 of the Registrant, initially
filed with the Commission on September 14, 1993).
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in their
opinion filed as Exhibit 5.1).
*23.3 Consent of Deloitte & Touche LLP
*24.1 Power of Attorney.
All other exhibits have been omitted since the required information is not
present or not present in amounts sufficient to require submission of schedules,
or because the information required is included in the financial statements and
related notes.
Where an exhibit is denoted as intentionally omitted, the agreement
referred to is an exhibit no longer in effect.
- - - - -----------------
* Previously filed.
(1) Management contracts and/or compensatory plans required to be identified
specifically as responsive to Item 601(b)(10)(iii)(A) of Regulation S-K.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Kirkland,
State of Washington, on September 14, 1999.
LAMONTS APPAREL, INC.
By: /s/ Alan R. Schlesinger
-------------------------------------
Alan R. Schlesinger
CHAIRMAN OF THE BOARD, CHIEF
EXECUTIVE OFFICER AND PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
Registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Alan R. Schlesinger * Chairman of the Board, Chief Executive
- - - - --------------------------- Officer, President and Director (Principal
Alan R. Schlesinger Executive Officer) September 14, 1999
/s/ Loren R. Rothschild *
- - - - ---------------------------
Loren R. Rothschild Vice Chairman of the Board and Director September 14, 1999
/s/ Debbie A. Brownfield * Executive Vice President,
- - - - --------------------------- Chief Financial Officer, Treasurer
Debbie A. Brownfield and Secretary (Principal Financial Officer September 14, 1999
and Principal Accounting Officer)
/s/ Stanford Springel *
- - - - ---------------------------
Stanford Springel Director September 14, 1999
/s/ Paul M. Buxbaum *
- - - - ---------------------------
Paul M. Buxbaum Director September 14, 1999
/s/ John J. Wiesner *
- - - - ---------------------------
John J. Wiesner Director September 14, 1999
/s/ Loren R. Rothschild
- - - - ---------------------------
Loren R. Rothschild, September 14, 1999
ATTORNEY-IN-FACT
</TABLE>
- - - - -----------------
*By Loren R. Rothschild, as Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
*2.1 Modified and Restated Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code (incorporated by reference from Exhibit 99.7 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on December 16, 1997).
*2.2 Supplemented and Restated Disclosure Statement (As Amended) re Debtor's
Plan of Reorganization Under Chapter 11 of the Bankruptcy Code
(incorporated by reference from Exhibit 99.8 of Quarterly Report on
Form 10-Q of the Registrant as filed with the Commission on December
16, 1997).
*3.1 Second Restated Certificate of Incorporation of the Registrant.
*3.2 Amended and Restated By-laws of the Registrant (as amended through July
2, 1999). (incorporated by reference from Exhibit 3 (ii) of Form 8-K of
the Registrant as filed with the Commission on July 6, 1999).
*4.1 Specimen Class A Common Stock certificate.
*4.2 Specimen Class B Common Stock certificate.
*4.3 Warrant Agreement dated January 31, 1998 between the Registrant and
Norwest Bank Minnesota, N.A., as Warrant Agent (incorporated by
reference from Exhibit 4 of the Company's Registration Statement on
Form 8-A, File No. 000-15542, filed with the Commission on February 2,
1998).
*4.4 Warrant Agreement dated January 31, 1998 between the Registrant and
Specialty Investment I LLC (incorporated by reference from Exhibit 5 of
Lamonts' Registration Statement on Form 8-A, File No. 000-15542, filed
with the Commission on February 2, 1998).
*4.5 Warrant Agreement dated January 31, 1998 between the Registrant and
Gordian Group, L.P. (incorporated by reference from Exhibit 4.6 of
Lamonts' Registration Statement on Form S-8, File No. 333-45455, filed
with the Commission on February 2, 1998).
*4.6 Form of Warrant Agreement dated January 31, 1998 between Registrant and
each of Alan R. Schlesinger, Loren R. Rothschild, Debbie A. Brownfield,
E.H. Bulen and Gary Grossblatt (incorporated by reference from Exhibit
6 of Lamonts' Registration Statement on Form 8-A, File No. 000-15542,
filed with the Commission on February 2, 1998).(1)
*4.7 Rights Agreement dated January 12, 1999, between the Registrant and
Norwest Bank Minnesota, N.A. (incorporated by reference from Exhibit
4.1 of Current Report on Form 8-K of the Registrant as filed with the
Commission on January 13, 1999)
*4.8 Certificate of Designation, Preferences and Rights of Series RP
Preferred Stock, dated January 12, 1999 (incorporated by reference from
Exhibit 4.8 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999).
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality
of the common stock and warrants.
*10.1 Standard Service Agreement dated February 13, 1989 between Frederick
Atkins, Incorporated and the Registrant, as amended October 3, 1989 and
February 5, 1990.
*10.2 Intentionally omitted.
*10.3 Form of Indemnification Agreement dated October 30, 1992 between the
Registrant and each of Alan R. Schlesinger, Loren R. Rothschild and
Debbie A. Brownfield (incorporated by reference from Exhibit 10.22 of
Current Report on Form 8-K of the Registrant as filed with the
Commission on November 13, 1992).(1)
*10.4 Intentionally omitted.
*10.5 Intentionally omitted.
*10.6 Employment Agreement dated April 18, 1995 between the Registrant and
Alan R. Schlesinger (incorporated by reference from Exhibit 10.5 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on April 21, 1995).(1)
*10.7 Employment Agreement dated April 18, 1995 between the Registrant and
Loren R. Rothschild (incorporated by reference from Exhibit 10.6 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on April 21, 1995).(1)
*10.8 License Agreement dated May 25, 1995 between the Registrant and Shoe
Corporation of America (incorporated by reference from Exhibit 10.2 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on June 12, 1995).
*10.9 Computer Services Agreement dated February 1, 1996 between the
Registrant and Infotech Corporation (incorporated by reference from
Exhibit 10.37 of Quarterly Report on Form 10-Q of the Registrant as
filed with the Commission on May 3, 1996).
*10.10 Loan and Security Agreement dated June 4, 1996 between First National
Bank of
II-6
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Boston and the Registrant (incorporated by reference from Exhibit 10.1
of Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on June 18, 1996).
*10.11 Depository Account Agreement dated June 4, 1996 among the Registrant,
BankBoston and Bank of America, N.W. N.A. (d/b/a Seafirst Bank).
*10.12 Waiver dated August 3, 1996 between First National Bank of Boston and
the Registrant (incorporated by reference from Exhibit 10.1 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on September 16, 1996).
*10.13 First Amendment dated November 8, 1996 to Loan and Security Agreement
dated June 4, 1996 between First National Bank of Boston and the
Registrant (incorporated by reference from Exhibit 10.1 of Quarterly
Report on Form 10-Q of the Registrant as filed with the Commission on
December 17, 1996).
*10.14 Amendment dated December 9, 1996 to the Credit Card Plan Agreement
(incorporated by reference from Exhibit 10.19 of Annual Report on Form
10-K of the Registrant as filed with the Commission on May 2, 1997).
*10.15 Computer Services Agreement dated February 4, 1997 between the
Registrant and Affiliated Computer Services, Inc. (incorporated by
reference from Exhibit 10.25 of Annual Report on Form 10-K of the
Registrant as filed with the Commission on May 2, 1997).
*10.16 Second Amendment dated May 23, 1997 to Loan and Security Agreement
dated June 4, 1996 between the Registrant and Bank Boston, N.A. (f/k/a
The First National Bank of Boston) ("BankBoston") (incorporated by
reference from Exhibit 10.26 of Quarterly Report on Form 10-Q of the
Registrant as filed with the Commission on September 12, 1997).
*10.17 Non-Qualified Employee Stock Option Agreement dated January 31, 1998
between the Registrant and each of Alan R. Schlesinger, Loren R.
Rothschild, Debbie A Brownfield, E.H. Bulen and Gary A. Grossblatt.(1)
*10.18 Lamonts Apparel, Inc. 1998 Stock Option Plan.(1)
*10.19 Amended and Restated Employment Agreement dated January 31, 1998
between the Registrant and Alan R. Schlesinger.(1)
*10.20 Amended and Restated Employment Agreement dated January 31, 1998
between the Registrant and Loren R. Rothschild.(1)
*10.21 Amended and Restated Debtor in Possession and Exit Financing Loan
Agreement dated September 26, 1997 among the Registrant, certain
financial institutions and Bank Boston, as agent (incorporated by
reference from Exhibit 10.27 of Quarterly Report on Form 10-Q of the
Registrant as filed with the Commission on December 16, 1997).
*10.22 Grant of Registration Rights dated January 31, 1998 among the Company
and the parties listed on the signature pages thereto.
*10.23 Form of Indemnification Agreement dated January 31, 1998 between the
Registrant and each of Alan R. Schlesinger, Loren R. Rothschild,
Debbie A. Brownfield, E.H. Bulen, Gary A. Grossblatt, Paul M. Buxbaum,
Stanford Springel and John J. Wiesner.(1)
*10.24 First Amendment dated January 8, 1998, to Amended and Restated Debtor
in Possession and Exit Financing Loan Agreement dated September 26,
1997 among the Registrant, certain financial institutions and
BankBoston, as agent. (incorporated by reference from Exhibit 10.24 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on December 16, 1998).
*10.25 Second Amendment dated April 1, 1998, to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent. (incorporated by reference from Exhibit 10.25 of Quarterly
Report on Form 10-Q of the Registrant as filed with the Commission on
December 16, 1998).
*10.26 Third Amendment dated September 23, 1998, to Amended and Restated
Debtor in Possession and Exit Financing Loan Agreement dated September
26, 1997 among the Registrant, certain financial institutions and
BankBoston, as agent. (incorporated by reference from Exhibit 10.26 of
Quarterly Report on Form 10-Q of the Registrant as filed with the
Commission on December 16, 1998).
*10.27 Fourth Amendment dated April 13, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent. (incorporated by reference from Exhibit 10.19 of Annual Report
on Form 10-K of the Registrant as filed with the Commission on
April 30, 1999).
*10.28 Amended and Restated Employment Agreement dated April 19, 1999 between
the Registrant and Alan R. Schlesinger (incorporated by reference from
Exhibit 10.11 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999). (1)
II-7
<PAGE>
*10.29 Amended and Restated Employment Agreement dated April 19, 1999 between
the Registrant and Loren R. Rothschild (incorporated by reference from
Exhibit 10.12 of Annual Report on Form 10-K of the Registrant as filed
with the Commission on April 30, 1999). (1)
*10.30 Form of Employment Agreement dated April 19, 1999 between the
Registrant and Debbie A. Brownfield, E.H. Bulen and Gary A. Grossblatt
(incorporated by reference from Exhibit 10.20 of Annual Report on Form
10-K of the Registrant as filed with the Commission on April 30, 1999).
(1)
10.31 Fifth Amendment dated July 9, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent.
10.32 Sixth Amendment dated July 31, 1999 to Amended and Restated Debtor in
Possession and Exit Financing Loan Agreement dated September 26, 1997
among the Registrant, certain financial institutions and BankBoston, as
agent.
*18.1 Letter re change in accounting principle (incorporated by reference
from Exhibit 18.1 of Quarterly Report on Form 10-Q of the Registrant as
filed with the Commission on June 15, 1999).
*21.1 Subsidiaries of the Registrant (incorporated by reference from Exhibit
22 of Registration Statement No. 33-68720 of the Registrant, initially
filed with the Commission on September 14, 1993).
*23.1 Consent of PricewaterhouseCoopers LLP.
*23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in their
opinion filed as Exhibit 5.1).
*23.3 Consent of Deloitte & Touche LLP
*24.1 Power of Attorney.
All other exhibits have been omitted since the required information is not
present or not present in amounts sufficient to require submission of schedules,
or because the information required is included in the financial statements and
related notes.
Where an exhibit is denoted as intentionally omitted, the agreement
referred to is an exhibit no longer in effect.
- - - - -----------------
* Previously filed.
(1) Management contracts and/or compensatory plans required to be identified
specifically as responsive to Item 601(b)(10)(iii)(A) of Regulation S-K.
II-8
<PAGE>
Exhibit 10.31
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 12413 Willows Road N.E., Kirkland, WA 98034,
BANKBOSTON, N.A. (f/k/a "The First National Bank of Boston"), a national banking
association with its head office at 100 Federal Street, Boston, Massachusetts
02110 (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
<PAGE>
-2-
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)
<PAGE>
-3-
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).
<PAGE>
-4-
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/ Debbie Brownfield
--------------------------------
Name: Debbie Brownfield
Title: EVP & CFO
BANKBOSTON, N.A., in its respective
capacities as a Revolving Credit Bank
and Agent
By: /s/ W. J. Sherald
--------------------------------
Name: W. J. Sherald
Title: Vice President
BANKBOSTON, N.A., as Term Loan
Lender
By: /s/ W. J. Sherald
--------------------------------
Name: W.J. Sherald
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Revolving Credit Bank
By: /s/ Kelly Wu
--------------------------------
Name: Kelly Wu
Title: AVP
<PAGE>
-5-
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/ Alan R. Goldstein
-------------------------------
Name: Alan R. Goldstein
Title: CFO/Mgr
GORDON BROTHERS PARTNERS,
INC.
By: /s/ Alan R. Goldstein
-------------------------------
Name: Alan R. Goldstein
Title: CFO/EVP
<PAGE>
Exhibit 10.32
SIXTH AMENDMENT
SIXTH AMENDMENT dated as of July 31, 1999 (this "AMENDMENT"), by and
among LAMONTS APPAREL, INC., a Delaware corporation (the "BORROWER"), having
its principal place of business at 12413 Willows Road N.E., Kirkland, WA
98034, BANKBOSTON, N.A. (f/k/a The First National Bank of Boston), a national
banking association and the other lending institutions that are or may become
party to the Loan Agreement referred to below (the "BANKS"), and BANKBOSTON,
N.A., as agent for the Banks (the "AGENT") amending certain provisions of the
Amended and Restated Debtor in Possession and Exit Financing Loan Agreement
by and among the Borrower, the Banks, 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, a Fourth Amendment dated as of April 13, 1999 and a Fifth
Amendment dated as of July 9, 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 Banks and the Agent
agree to amend the terms of the Loan Agreement in order to modify the
financial covenant set forth in Section 10.3(d) thereof; and
WHEREAS, the Banks and the Agent are 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
treceipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. AMENDMENT TO SECTION 10.3 OF THE LOAN AGREEMENT. Section
10.3(d) of the Loan Agreement is hereby amended by deleting the Minimum
Amount of "$47,800,000" set forth opposite the date of July 31, 1999 in the
table set forth therein, and by replacing such amount with the Minimum Amount
of "$46,500,000".
Section 2. REPRESENTATIONS, WARRANTIES AND COVENANTS; NO DEFAULT;
AUTHORIZATION. The Borrower hereby represents, warrants and covenants to the
Banks and the Agent as follows:
<PAGE>
-2-
(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 constitutes the legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms.
Section 3. 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 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)
executed by the Guarantor (as defined in the Purchase and Guaranty
Agreement), each in form and substance satisfactory to the Agent.
(c) The Agent shall have received such other documents or
instruments relating hereto as the Agent shall have reasonably requested.
Section 4. 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 5. 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
<PAGE>
-3-
Obligations, any other obligations of the Borrower, or any right of the Agent
or any Bank consequent thereon.
Section 6. 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 7. 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).
<PAGE>
-4-
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/ Loren R. Rothschild
--------------------------------
Name: Loren R. Rothschild
Title: Vice Chairman
BANKBOSTON, N.A., in its respective
capacities as a Revolving Credit Bank
and Agent
By: /s/ W.J. Sherald
--------------------------------
Name: W.J. Sherald
Title: Vice President
BANKBOSTON, N.A., as Term Loan
Lender
By: /s/ W.J. Sherald
--------------------------------
Name: W.J. Sherald
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Revolving Credit Bank
By: /s/ Cecil Chinery
--------------------------------
Name: Cecil Chinery
Title: VP
<PAGE>
-5-
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/ Alan R. Goldstein
----------------------
Name: Alan R. Goldstein
Title: CFO/Mgr
GORDON BROTHERS PARTNERS,
INC.
By: /s/ Alan R. Goldstein
----------------------
Name: Alan R. Goldstein
Title: CFO/EVP
