exv10w36






Exhibit 10.36




EXECUTION COPY




AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




          This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated
as of July 1, 2011 is by and among BLUESTEM BRANDS, INC. (the “Borrower”), each of the Lenders
party to the Credit Agreement (as defined below) as of the date hereof, and JPMORGAN CHASE BANK,
N.A., as administrative agent for the Lenders (“Administrative Agent”).




R E C I T A L S:




          WHEREAS, Administrative Agent, Lenders and Borrower are parties to that certain Second Amended
and Restated Credit Agreement dated as of August 20, 2010 (as amended, supplemented, restated or
otherwise modified from time to time, the “Credit Agreement”); capitalized terms used and not
defined herein shall have the meanings assigned to them in the Credit Agreement, as amended hereby;
and




          WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement pursuant to
the terms and conditions set forth herein;




          NOW, THEREFORE, in consideration of the premises contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:



Section 1. Amendments to Credit Agreement. Immediately upon the satisfaction of each of
the applicable conditions precedent set forth in Section 3 of this Amendment, the following
amendments to the Credit Agreement shall become effective:





     (a) Amendment to Section 6.04(j). Section 6.04(j) is hereby amended and
restated in its entirety as follows:




	 	 	 	“(j) investments received or loans or advances made in connection with the
dispositions of assets permitted by Section 6.05 including pursuant to installment
contracts or similar arrangements in connection with dispositions permitted under
Section 6.05(k) (provided that the aggregate amount of such investments pursuant to
installment contracts or similar arrangements in connection with dispositions
permitted under Section 6.05(k) shall not exceed $10,000,000 in the aggregate at any
time outstanding);”






     (b) Amendment to Section 6.05. Section 6.05 is hereby amended by (i) deleting
“and” at the end of clause (i) thereof, (ii) deleting the period at the end of clause (j)
and inserting “; and” in its place, (iii) adding the following new clause (k) at the end
thereof:



 









 






	 	 	 	“(k) with respect to the Borrower and any Subsidiary other than Bluestem SPV, sales
of inventory pursuant to installment contracts or similar arrangements with
consumers and/or employers of consumers in connection with voluntary benefit
programs and payroll deduction plans used to purchase general merchandise and
services;”
	 
	 	 	 	and (iv) replacing the parenthetical in the proviso at the end thereof in its
entirety to read “(other than those permitted by paragraphs (b), (e), (f), (g), (i)
and (k) above)”.




Section 2. Amendments to Loan Documents. (a) Upon the Effective Date, the Administrative
Agent, the Lenders and the Borrower agree that, if US Bank shall change any account number held at
US Bank that is referenced in the Loan Documents, such account shall be deemed to refer to such new
account number, immediately upon notice thereof to the Administrative Agent.




          (b) In connection with any change to the account number of any one or more accounts held at US
Bank, the Borrower, as grantor, hereby authorizes (i) the amendment of the related control
agreement and (ii) the filing of such amendments to financing statements, as, in each case, the
Collateral Agent may determine are necessary or advisable to perfect (or maintain) the security
interest granted to the Collateral Agent in such account, as the case may be, under the Security
Agreement.



Section 3. Conditions Precedent to Effectiveness of Amendment. This Amendment shall be
effective on the date on which (i) this Amendment shall have been duly executed and delivered by
the parties hereto and (ii) Administrative Agent shall have received fully executed copies of the
amendments and/or consents to the Servicing Agreement, Holdings Letter Agreement, SPV Security
Agreement and the Senior Subordinated Securities Purchase Agreement, in each case, corresponding in
relevant part to this Amendment and in form and substance reasonably satisfactory to Administrative
Agent.



Section 4. Representations, Warranties and Covenants. In order to induce Administrative
Agent and Lenders to enter into this Amendment, Borrower represents, warrants and covenants to
Administrative Agent and Lenders, upon the effectiveness of this Amendment, which representations,
warranties and covenants shall survive the execution and delivery of this Amendment, that:




          (a) No Default; etc. No Event of Default and no event or condition which, merely
with notice or the passage of time or both, would constitute an Event of Default, has occurred and
is continuing after giving effect to this Amendment or would result from the execution or delivery
of this Amendment or the consummation of the transactions contemplated hereby.




          (b) Power and Authority; Authorization. Borrower has the corporate power and
authority to execute and deliver this Amendment and to carry out the terms and provisions of the
Credit Agreement, as amended by this Amendment, and the execution and delivery by Borrower of this
Amendment, and the performance by Borrower of its obligations hereunder and





 









 







under the Loan Documents have been duly authorized by all requisite corporate action by Borrower.




          (c) Execution and Delivery. Borrower has duly executed and delivered this Amendment.




          (d) Enforceability. This Amendment and the Credit Agreement, as amended by this
Amendment, constitute the legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
right generally, and by general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




          (e) Representations and Warranties. All of the representations and warranties
contained in the Credit Agreement and in the other Loan Documents (other than those which speak
expressly only as of a different date) are true and correct in all material respects as of the date
hereof after giving effect to this Amendment and the transactions contemplated hereby.



Section 5. Consent to Amendments or Consents to the Senior Subordinated Securities Purchase
Agreement, the Servicing Agreement, the Holdings Letter Agreement and the SPV Security
Agreement. By their execution of this Amendment, the Lenders and the Administrative Agent
hereby consent (to the extent required) to the execution and delivery by the Borrower of amendments
to each of the Senior Subordinated Securities Purchase Agreement, the Servicing Agreement, Holdings
Letter Agreement and SPV Security Agreement, which are substantially similar to the Amendments set
forth herein, and this Amendment shall constitute proper notice under the Loan Documents (to the
extent required) with respect to such amendments.



Section 6. Miscellaneous.




          (a) Effect; Ratification. Borrower acknowledges that all of the reasonable legal
expenses incurred by Administrative Agent in connection herewith shall be reimbursable under
Section 9.03 of the Credit Agreement. The amendments and waiver set forth herein are effective
solely for the purposes set forth herein and shall be limited precisely as written, and shall not
be deemed to (i) be a consent to any amendment, waiver or modification of any other term or
condition of the Credit Agreement, as amended hereby, or of any other Loan Document or (ii)
prejudice any right or rights that Administrative Agent or any Lender may now have or may have in
the future under or in connection with the Credit Agreement or any other Loan Document. Each
reference in the Credit Agreement to “this Agreement”, “herein”, “hereof” and words of like import
and each reference in the other Loan Documents to the “Credit Agreement” shall mean the Credit
Agreement as amended hereby. This Amendment shall be construed in connection with and as part of
the Credit Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Credit Agreement and each other Loan Document, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and effect.





 









 








          (b) Counterparts. This Amendment may be executed via facsimile transmission in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which counterparts together shall
constitute one and the same instrument.




          (c) Severability. In case any provision in or obligation under this Amendment shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.




          (d) Loan Document. This Amendment shall constitute a Loan Document.




          (e) Reaffirmation of Guaranties. Borrower hereby reaffirms its Secured Obligations and
Guaranteed Obligations.




          (f) Governing Law. This Amendment shall be governed by and construed in accordance
with, the internal laws of the State of New York.




[Signature Page Follows]





 









 








          IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Second Amended and
Restated Credit Agreement to be duly executed by their respective authorized officers as of the
date first above written.




	 	 	 	 	 	 	 

	 	 	BLUESTEM BRANDS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark P. Wagener
 

Mark P. Wagener
	 	 
	 

	 	Title:
	 	Executive Vice President & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., individually,	 	 
	 	 	as Administrative Agent, and Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Bradford R. Kuhn
 

Bradford R. Kuhn
	 	 
	 

	 	Title:
	 	Duly Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Elizabeth J. Limpert
 

Elizabeth J. Limpert
	 	 
	 

	 	Title:
	 	Vice President