Exhibit 10.24
FIFTH AMENDMENT TO
LETTER OF CREDIT FACILITY AGREEMENT
THIS FIFTH AMENDMENT TO LETTER OF CREDIT FACILITY AGREEMENT, dated as of
September 22, 2000 (this "Amendment"), among SPIEGEL, INC., a Delaware
corporation (the "Company"), BANK OF AMERICA, NATIONAL ASSOCIATION (formerly
known as Bank of America National Trust and Savings Association) ("Bank of
America"); XXX XXXX XX XXX XXXX ("XXXX"); XXX XXXX XXXX AND SHANGHAI BANKING
CORPORATION LIMITED ("HKSB"); ABN AMRO BANK N.V., acting through its Chicago
Branch ("ABN") and any other financial instantiation from time to time party
thereto (collectively, the "Banks" and, individually, a "Bank"), and Bank of
America, as agent, for the Banks (in such capacity, the "Agent").
WITNESSETH
WHEREAS, the Company, the Agent and the Banks entered into that certain
Letter of Credit Facility Agreement, dated as of September 27, 1996 as amended
from time to time (the "Existing Agreement"); and
WHEREAS, the parties to the Existing Agreement wish to amend the Existing
Agreement (the Existing Agreement as amended by this Amendment being the
"Amended Agreement") as provided in this Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 AMENDMENT. Effective on (and subject to the occurrence of) the
Amendment Effective Date (as defined in Section 2 of this Amendment), the
Existing Agreement shall be amended in accordance with this Section 1.
SECTION 1.1 Section 1.01 is hereby amended by deleting the definition of
"Revolving Credit Agreement" in its entirety and replacing such definition with
the following:
"Revolving Credit Agreement" means that certain Second Amended and
Restated Revolving Credit Agreement, dated June 30, 2000 as may be
amended or restated from time to time, among the Company, various
financial institutions as lenders and Deutsche Bank AG New York Branch
as the Administrative Agent."
SECTION 1.2 Section 1.01 is amended by deleting "September 22, 2000"
where it appears in the definition of "Termination Date" and replacing it with
"September 21, 2001".
SECTION 1.3 Section 2.07(b) is amended by deleting ".20" where it appears
in such subsection and replacing it with ".15".
SECTION 1.4 Schedule 2.01 is amended by deleting such Schedule in its
entirety and replacing it with the following:
"SCHEDULE 2.01
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COMMITMENTS
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AND PRO RATA SHARES
-------------------
Pro Rata
Bank Commitment Share
---- ---------- --------
Bank of America National Association $37,500,000 25%
The Bank of New York $37,500,000 25%
The Hongkong and Shanghai Banking $37,500,000 25%
Corporation Limited
ABN AMRO Bank N.V., acting $37,500,000 25%
through its Chicago Branch
------------
TOTAL $150,000,000 100%"
SECTION 2 EFFECTIVENESS. The amendment set forth in Section 1 above shall
become effective on such date (the "Amendment Effective Date") and (i) the Agent
and the Company shall have received counterparts of this Amendment executed on
behalf of the Company and all of the Banks, (ii) the Agent shall have received
executed counterparts of an Affirmation of Guaranty in the form of Exhibit A
hereto on behalf of all the Guarantors, and (iii) the Agent shall have received
from the Company a notice of change in Issuing Banks Issuance Allocations and/or
Tenor Allocations, which notice complies with Section 2.13 of the Amended
Agreement and which reflects the reduction in the Commitments hereunder.
SECTION 3 REPRESENTATIONS AND WARRANTIES.
SECTION 3.1. In order to further induce the Banks to agree to amend the
Existing Agreement, the Company makes the following representations and
warranties, which shall survive the execution and delivery of this Amendment:
(a) No event of Default has occurred and is continuing; and
(b) Each of the representations and warranties set forth in
Article V of the Existing Agreement are true and correct as
though such representations and warranties were made at and as of
the Amendment Effective Date (as defined in Section 2 above)
except to the extent that any such representations or warranties
are made as of a specified date or with
respect to a specified period of time, in which case, such
representations and warranties shall be made as of such specified
date or with respect to such specified period. Each of the
representations and warranties made under the Existing Agreement
shall survive to the extent provided therein and not be waived by
the execution and delivery of this Amendment.
SECTION 4 MISCELLANEOUS PROVISIONS.
SECTION 4.1 Severability. Any provision of this Amendment or any other
Credit Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Amendment or such Credit Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 4.2 Execution in Counterparts; Notice. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
SECTION 4.3 Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO THE BANK.
This Amendment, the Amended Agreement, the Subsidiary L/C Guaranty and the other
Credit Documents constitute the entire understanding among the parties hereto
with respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto and except as amended hereby remain in
full force and effect and are hereby ratified and confirmed in all respects.
SECTION 4.4 Reference to Existing Agreement. On and after the Amendment
Effective Date, each reference in the "herein" or words of like import, and each
reference to the Existing Agreement in any Subsidiary L/C Guaranty, L/C-Related
Document or in any other Credit Document or other agreements, documents or
instruments executed and delivered pursuant to the Existing Agreement, shall be
deemed a reference to the Amended Agreement.
SECTION 4.5 Successor and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that the Company may not assign or transfer its
rights or obligations hereunder without the prior written consent of the Agent
and each Bank.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereto duly authorized as of the day and
year first above written.
SPIEGEL, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name Printed: Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Bank
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
THE BANK OF NEW YORK
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
ABN AMRO BANK N.V.
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
By:
--------------------------
Name Printed:
--------------------------
Title:
--------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereto duly authorized as of the day and
year first above written.
SPIEGEL, INC.
By: __________________________________
Name Printed: Xxxx X. Xxxxxx
Title: Treasurer
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By: Xxxxxxx Xxxxxxxxx
Name Printed: Xxxxxxx Xxxxxxxxx
Title: Managing Director
BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Bank
By: Xxxxxxx Xxxxxxxxx
Name Printed: Xxxxxxx Xxxxxxxxx
Title: Managing Director
THE BANK OF NEW YORK
By: __________________________________
Name Printed: __________________________________
Title: __________________________________
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: __________________________________
Name Printed: __________________________________
Title: __________________________________
ABN AMRO BANK N.V.
By: __________________________________
Name Printed: __________________________________
Title: __________________________________
By: __________________________________
Name Printed: __________________________________
Title: __________________________________
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereto duly authorized as of the day and
year first above written.
SPIEGEL, INC.
By:
-------------------------------------
Name Printed: Xxxx X. Xxxxxx
Title: Treasurer
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Agent
By:
-------------------------------------
Name Printed:
-------------------------------------
Title:
-------------------------------------
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Bank
By:
-------------------------------------
Name Printed:
-------------------------------------
Title:
-------------------------------------
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx Xxxx Fuiks
-------------------------------------
Name Printed: Xxxxxxxxx Xxxx Xxxxx
-------------------------------------
Title: VP
-------------------------------------
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By:
-------------------------------------
Name Printed:
-------------------------------------
Title:
-------------------------------------
ABN AMRO BANK N.V.
By:
-------------------------------------
Name Printed:
-------------------------------------
Title:
-------------------------------------
By:
-------------------------------------
Name Printed:
-------------------------------------
Title:
-------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereto duly authorized as of the day and
year first above written.
SPIEGEL, INC.
By:
-------------------------------
Name Printed: Xxxx X. Xxxxxx
Title: Treasurer
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By:
-------------------------------
Name Printed:
-------------------------------
Title:
-------------------------------
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By:
-------------------------------
Name Printed:
-------------------------------
Title:
-------------------------------
THE BANK OF NEW YORK
By:
-------------------------------
Name Printed:
-------------------------------
Title:
-------------------------------
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------
Name Printed: Xxxxxxx X. X'Xxxxx
-------------------------------
Title: Regional Relationship Manager
-------------------------------
ABN AMRO BANK N.V.
By:
-------------------------------
Name Printed:
-------------------------------
Title:
-------------------------------
By:
-------------------------------
Name Printed:
-------------------------------
Title:
-------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereto duly authorized as of the day and
year first above written.
SPIEGEL, INC.
By:
------------------------------
Name Printed: Xxxx X. Xxxxxx
Title: Treasurer
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By:
------------------------------
Name Printed:
------------------------------
Title:
------------------------------
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By:
------------------------------
Name Printed:
------------------------------
Title:
------------------------------
THE BANK OF NEW YORK
By:
------------------------------
Name Printed:
------------------------------
Title:
------------------------------
THE HONG KONG AND SHANGHAI BANKING
CORPORATION LIMITED
By:
------------------------------
Name Printed:
------------------------------
Title:
------------------------------
ABN AMRO BANK N.V.
By: /s/ W. Xxxxxxx Xxxxx
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Name Printed: W. Xxxxxxx Xxxxx
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Title: Senior Vice President
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By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name Printed: Xxxxx X. Xxxxxx
------------------------------
Title: Asst. Vice President
------------------------------
EXHIBIT A
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REAFFIRMATION OF GUARANTY
-------------------------
Each of the undersigned acknowledges receipt of a copy of the Fifth
Amendment to the Letter of Credit Facility Agreement (the "Fifth Amendment")
dated as of September __, 2000, consents to such amendment and each of the
transactions referenced therein and hereby reaffirms its obligations under the
Subsidiary Guaranty for Letter of Credit Facility Agreement in favor of Bank of
America as Agent, and the Banks (as defined in the Fifth Amendment).
Dated as of September 22, 2000
SPIEGEL PUBLISHING COMPANY XXXXX XXXXX, INC.
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
By: ____________________________ By: ________________________________
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Treasurer Title: Treasurer
SPIEGEL CATALOG, INC. ULTIMATE OUTLET INC.
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
By: ____________________________ By: ________________________________
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Treasurer Title: Treasurer
DISTRIBUTION FULFILLMENT SERVICES, INC. NEWPORT NEWS, INC.
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
By: ____________________________ By: ________________________________
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Title: Treasurer Title: Treasurer
