Exhibit 10.23
FOURTH AMENDMENT TO
LETTER OF CREDIT FACILITY AGREEMENT
THIS FOURTH AMENDMENT TO LETTER OF CREDIT FACILITY AGREEMENT, dated as of
September 24, 1999 (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"); THE BANK OF NEW YORK ("BONY"); THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED ("HKSB"); ABN AMRO BANK N.V., acting through its Chicago
Branch ("ABN") and any other financial institution from time to time party
thereto (collectively, the "Banks" and, individually, a "Bank"), and NT&SA,
as agent, for the Banks (in such capacity, the "Agent").
W I T N E S S E T H
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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
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Existing Agreement shall be amended in accordance with this Section 1.
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SECTION 1.1 Section 1.01 is hereby amended by deleting the definition of
the "Revolving Credit Agreement" and substituting:
"Revolving Credit Agreement" means that certain First Amended
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and Restated Revolving Credit Agreement, dated July 27, 1999 as
may be amended 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 of the Existing Agreement is amended by deleting
"September 24, 1999" where it appears in the definition of "Termination
Date" and inserting "September 22, 2000".
SECTION 1.3 Section 2.01(b)(iii) is hereby deleted and the following
Section 2.01(b)(iii) shall be substituted:
"(iii) the expiry date of any requested Letter of Credit is
more than 180 days after the date of Issuance, provided,
however, that up to $20,000,000 of Letters of Credit may expire
up to 364 days after the date of Issuance; or"
SECTION 2 EFFECTIVENESS. The amendment set forth in Section 1 above shall
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become effective, as of the day and year first above written, on such date (the
"Amendment Effective Date") when the Agent and the Company shall have
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received counterparts of this Amendment executed on behalf of the Company and
the Required Banks.
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
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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
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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
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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 of 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
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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 deeded a reference to the Amended Agreement.
SECTION 4.5 Successor and Assigns. This Amendment shall be binding upon
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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
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transfer its rights or obligations hereunder without the prior written consent
of the Agent and each Bank.
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
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Name Printed: XXXX X. XXXXXX
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Title: Treasurer
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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: _____________________________________
Name Printed:_____________________________________
Title: _____________________________________
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By: _____________________________________
Name Printed: _____________________________________
Title: _____________________________________
ABN AMRO BANK N.V.
By: _____________________________________
Name Printed: _____________________________________
Title: _____________________________________
By: _____________________________________
Name Printed: _____________________________________
Title: _____________________________________
SPIEGEL, INC.
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Agent
By: /s/ XXXXXXX X. XXXXXXXXX
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Name Printed: XXXXXXX X. XXXXXXXXX
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Title: Managing Director
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Bank
By: /s/ XXXXXXX X. XXXXXXXXX
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Name Printed: ________________________
Title: _______________________________
THE BANK OF NEW YORK
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
ABN AMRO BANK N.V., CHICAGO BRANCH
BY: ABN AMRO NORTH AMERICA, INC., as
Agent
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
SPIEGEL, INC.
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
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/ Xxxxxxx XXXXXX
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Name Printed: Xxxxxxx XXXXXX
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Title: [6X] President
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THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By: ____________________________________
Name Printed: _______________________
Title: ______________________________
ABN AMRO BANK N.V., CHICAGO BRANCH
BY: ABN AMRO NORTH AMERICA, INC., as
Agent
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
SPIEGEL. INC.
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
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: _____________________________________
Name Printed: ________________________
Title: _______________________________
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By: /s/ Xxxxx X Xxxxxxx-Xxxxxxx
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Name Printed: Xxxxx X Xxxxxxx-Xxxxxxx
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Title: Senior Corporate Relationship
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Manager
ABN AMRO BANK N.V., CHICAGO BRANCH
BY: ABN AMRO NORTH AMERICA, INC., as
Agent
By: _______________________________________
Name Printed: __________________________
Title: _________________________________
By: _______________________________________
Name Printed: __________________________
Title: _________________________________
SPIEGEL, INC.
By: _____________________________________
Name Printed: ________________________
Title: _______________________________
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: ______________________________________
Name Printed: _________________________
Title: ________________________________
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By: ______________________________________
Name Printed: _________________________
Title: ________________________________
ABN AMRO BANK N.V.
By: /s/ XXXXX X. XXXXXX
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Name Printed: XXXXX X. XXXXXX
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Title: Vice President
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By: /s/ XXXX X. XXXXXXXXX
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Name Printed: XXXX X. XXXXXXXXX
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Title: VICE PRESIDENT
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