EXHIBIT 10.1.12
AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
AMENDMENT AGREEMENT dated as of December 13, 1996 among
FIRST UNION NATIONAL BANK, a national banking association, solely
in its capacity as the trustee (the "Trustee") for CHARMING
SHOPPES MASTER TRUST, a trust formed pursuant to the Pooling and
Servicing Agreement (as defined in Exhibit I to the RPA (as
hereinafter defined)) (in such capacity, the "Seller"), FASHION
SPC, INC., a Delaware corporation (the "Subordinated Purchaser"),
SPIRIT OF AMERICA NATIONAL BANK, a national banking association
("Spirit"), in its capacity as the originator or the owner (prior
to the sale thereof to the Seller pursuant to the Pooling and
Servicing Agreement) of the Accounts (as defined in Exhibit I to
the RPA) (in such capacity, the "Owner") and in its capacity as
the Servicer (in such capacity, the "Services"), CXC
INCORPORATED, a Delaware corporation ("CXC"), and CITICORP NORTH
AMERICA, INC., a Delaware corporation ("CNAI"), as agent (the
"Agent") for the Purchasers and, as to Sections 2 and 4 (b)
hereof only, CHARMING SHOPPES, INC., a Pennsylvania corporation
("Charming Shoppes"), and FASHION SERVICE CORP., a Delaware
corporation ("FSC").
Preliminary Statements. (1) The Seller, the Subordinated
Purchaser, the Owner, the Servicer, the Purchasers and CNAI as
Agent, are parties to a Receivables Purchase Agreement dated as
of April 4, 1996 (the "RPA"; capitalized terms not otherwise
defined herein shall have the meanings attributed to them in the
RPA), pursuant to which a Purchaser may, in its sole discretion,
purchase Receivable Interests from the Seller;
(2) Charming Shoppes and FSC are parties to a Company
Agreement dated as of April 4, 1996 (the "Company Agreement") in
favor of the Purchasers and the Agent, pursuant to which Charming
Shoppes and FSC agree, among other things, to cause the
performance and observance by each of the Owner, the Servicer and
the Seller and their respective successors and assigns of all of
the terms, covenants, conditions, agreements and undertakings on
the part of the Owner, the Servicer and the Seller, respectively,
to be performed or observed under the RPA;
(3) The Seller, the Subordinated Purchaser, the Owner, the
Servicer, the Purchasers, the Agent and Citibank desire to amend
the RPA to (i) increase the maximum permitted Floating Allocation
Percentage, (ii) increase the maximum permitted Quarterly Charge-
Off Ratio and (iii) establish an escrow account relating to
charge-offs; and
(4) Charming Shoppes, FSC and the Agent desire to confirm
that the Company Agreement continues to apply to the RPA as
amended hereby;
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NOW, THEREFORE, the parties agree as follows:
SECTION 1. Amendments to RPA. The RPA shall be amended as
follows, effective as of the date on which all of the conditions
precedent set forth in Section 4 shall be satisfied:
(I) a new Section 7.17 to the RPA is added to read in its
entirety as follows:
"SECTION 7.17. The CO Escrow Account.
(a) Establishment. If at any time the Quarterly
Charge-Off Ratio shall exceed 12%, the Agent shall establish an
account (the "CO Escrow Account") in the name and under the
control of the Agent with an Eligible Institution (which may be
Citibank, N.A.) titled "Citicorp North America, Inc., as Agent,
pursuant to the Receivables Purchase Agreements dated as of April
5, 1996, as amended, among Spirit of America National Bank, as
Owner and Servicer, the Agent and certain other parties (CO
Escrow Account)". The CO Escrow Account shall be a fully
segregated trust account, unless the Escrow Bank shall be (i) an
Eligible Institution having short-term debt ratings from S&P and
Xxxxx'x no lower than A-1/P-1 or (ii) Citibank, N.A. The CO
Escrow Account shall be under the sole dominion and control of
the Agent, and neither the Subordinated Purchaser, nor any Person
claiming by, through or under the Subordinated Purchaser shall
have any right, title or interest in, or any right to withdraw
any amount from, the CO Escrow Account.
(b) Taxation. The taxpayer identification number
associated with the CO Escrow Account shall be that of the
Subordinated Purchaser and the Subordinated Purchaser will report
for federal, state and local income tax purposes the income, if
any, earned on funds in the CO Escrow Account.
(c) Investments. The Subordinated Purchaser is hereby
appointed as the investment agent, which appointment the
Subordinated Purchaser hereby accepts, to act on behalf of the
Agent for determining investments of cash at any time on deposit
in the CO Escrow Account. All funds on deposit in the CO Escrow
Account shall be invested in Eligible Investments (as shall be
specified by the Subordinated Purchaser, as investment agent, in
writing to the Escrow Bank and the Agent; provided, that if the
Subordinated Purchaser shall fail to specify such Eligible
Investments in a timely manner, the Agent may specify such
Eligible Investments) which shall mature not later than the
Business Day preceding the next Distribution Date and shall
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be held to maturity. All such investments shall be made in the
name of the Escrow Bank, as agent, and held by the Escrow Bank,
or its nominee, for the benefit of the Agent. The Escrow Bank
shall not be liable for any loss incurred in connection with any
investment in the CO Escrow Account, except for losses in respect
of investments in any investment issued or guaranteed by the
Escrow Bank. Income earned on funds deposited to the CO Escrow
Account, if any, shall be considered ap art of the CO Escrow
Account.
(d) New CO Escrow Account. In the event the
Escrow Bank ceases to be an Eligible Institution, the
Agent shall, within ten days after learning thereof,
establish a new CO Escrow Account (and transfer any
balance and investments then in the CO Escrow Account
to such new CO Escrow Account) at another Eligible
Institution.
(e) Statements for CO Escrow Account. On a
monthly basis, the Escrow Bank shall provide the Agent with a
written statement with respect to the preceding calendar month
regarding the CO Escrow Account in a form customary for
statements provided by the Escrow Bank for other accounts held by
it, which statement shall include, at a minimum, the amount on
deposit in the CO Escrow Account, and the dates and amounts of
all deposits, withdrawals and investment earnings with respect to
the CO Escrow Account. The Escrow Bank shall promptly deliver a
copy of each such statement to the Subordinated Purchaser and to
the Servicer.
(f) Payments to CO Escrow Account. On each
Distribution Date, commencing on any Distribution Date
on which the Quarterly Charge-Off Ratio shall exceed
12% and continuing until the earlier of (i) the second
Distribution Date thereafter on which the Quarterly
Charge-Off Ratio shall be less than 12% and (ii) the
Termination Date, the Subordinated Purchaser shall pay
into the CO Escrow Account an amount such that, after
giving effect to such payment, the aggregate funds on
deposit in the CO Escrow Account shall at least be
equal to an amount (the "Required CO Escrow Amount")
equal to the product of (x) the sum of Purchaser
Capital plus "Purchaser Capital" (as defined in the
Parallel Purchase Commitment) multiplied by (y) a
percentage equal to the excess, if any, of the higher
of the Quarterly Charge-Off Ratios for the two Due
Periods preceding such Distribution Date minus 12%.
(g) Payments from CO Escrow Account. On each
Distribution Date preceding the Termination Date on
which the funds on deposit in the CO Escrow Account
exceed the Required CO Escrow Amount, the Agent agrees
to notify the Escrow Bank to pay such excess to the
Subordinated
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Purchaser. The form of Servicer Report
shall be amended to include the Required CO Escrow
Amount.
If on any Distribution Date the amount available
in the SP Escrow Account for payments pursuant to
Section 7.16(f) on such date is less than the sum of
the New Purchaser Charge-Offs plus any existing
unreimbursed Purchaser Charge-Offs and unreimbursed
"Purchaser Charge-Offs" (as defined in the Parallel
Purchase Commitment), the Agent on behalf of the Owners
shall notify the Escrow Bank requesting payment of such
insufficiency from the CO Escrow Account. To the
extent funds are available in the CO Escrow Account,
the Escrow Bank shall pay the amount requested to the
Agent by noon New York City time on such Distribution
Date, and the Agent shall distribute such funds to the
Purchasers and the Banks. Such payment and
distribution of funds from the CO Escrow Account shall
not result in any reduction of Purchaser Capital or
"Purchaser Capital" (as defined in the Parallel
Purchase Commitment).
(h) Pledge. The Subordinated Purchaser hereby
pledges and assigns to the Agent for the benefit of the
Purchasers and the Banks, and hereby grants to the
Agent for the benefit of the Purchasers and the Banks,
a security interest in, all of the Subordinated
Purchaser's right, title and interest in and to the CO
Escrow Account, including, without limitation, all
funds of deposit therein, all investments arising out
of such funds, all interest and any other income
arising therefrom, all claims thereunder or in
connection therewith, and all cash, instruments,
securities, rights and other property at any time and
from time to time received, receivable or otherwise
distributed in respect of such account, such funds or
such investments, and all money at any time in the
possession or under the control of, or in transit to
such account, or any bailee, nominee, agent or
custodian of the Escrow Bank, and all proceeds and
products of any of the foregoing. Except as provided
in the preceding sentence, the Subordinated Purchaser
may not assign, transfer or otherwise convey its rights
under this Agreement to receive any amounts from the CO
Escrow Account.
(i) Termination of CO Escrow Account.
Unless the balance in the CO Escrow Account has
been sooner reduced to zero pursuant to paragraph (g)
of this Section 7.17, on the date occurring on or
immediately after the later of (i) the date on which
the Adjusted Purchaser Capital is reduced to zero and
(ii) the date on which the "Adjusted Purchaser Capital"
(as defined in the Parallel Purchase Commitment) is
reduced to zero, all funds then on deposit in the CO
Escrow Account shall be paid to the Subordinated
Purchaser, and the CO Escrow Account shall be closed.
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If, on the Distribution Date immediately following
the second anniversary of the SP Escrow Establishment
Date, the CO Escrow Account shall not have been closed
in accordance with the preceding sentence, then on such
Distribution Date all funds then on deposit in the CO
Escrow Account shall be applied as follows: first,
such funds, in an amount not in excess of the sum of
Adjusted Purchaser Capital for such Distribution Date
plus "Adjusted Purchaser Capital" (as defined in the
Parallel Purchase Commitment) for such Distribution
Date, shall be paid to the Agent, and upon receipt of
such funds, the Agent shall distribute such funds to
the Purchasers and the Banks; and second, the balance,
if any, shall be paid to the Subordinated Purchaser.
Upon the making of all payments described in the
preceding sentence, the CO Escrow Account shall be
closed."
(ii) The definition of "Adjusted Purchaser
Capital" in Exhibit I to the RPA is amended by adding
the following phrase at the end thereof:
", minus (d) the total amount of payments made to
the Purchasers from the CO Escrow Account prior to
such date."
(iii) The definition of "Escrow Bank" in
Exhibit I to the RPA is amended by adding the following
phrase at the end thereof:
"or the Eligible Institution then holding the CO
Escrow Account pursuant to Section 7.17 of the
Agreement."
(iv) Paragraph (h) of Exhibit VI to the RPA
is amended by replacing the percentage "12%" in the
last line thereof (which represents the maximum
permitted Quarterly Charge-Off Ratio) with the
percentage "15%";
(v) Paragraph (i) of Exhibit VI to the RPA
is amended by replacing the percentage "98.213%" in the
third to last line thereof (which represents the
maximum permitted Floating Allocation Percentage) with
the percentage "98.276%";
(vi) Section 69 of Schedule A (Servicer
Report) to the RPA is amended by replacing the
percentage "12%" in line (h) thereof with the
percentage "15%" and by the addition of a line (i)
thereto to calculate the Required CO Escrow Amount;
(vii) Notwithstanding anything to the
contrary contained in Section 7.06(a)of the RPA, this
Amendment Agreement, if deemed by the Owner or its
Affiliates to be a "material contract" under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), maybe filed by the
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Owner with the Securities and Exchange Commission as an exhibit to an
annual report on Form 10-K or a quarterly report on
Form 10-Q under the Exchange Act, in each case without
any special confidentiality requirement."
SECTION 2. Confirmation of the Company Agreement.
Each of Charming Shoppes and FSC (i) agrees that the Company
Agreement applies to the RPA as amended by this Amendment
Agreement and (ii) ratifies and confirms the Company Agreement in
all respects and agrees that the Company Agreement shall remain
in full force and effect in accordance with its terms, except
that on and after the date hereof, each reference in the Company
Agreement to "the RPA", "thereunder", "thereof" or words of like
import referring to the RPA shall mean and be a reference to the
RPA as amended by this Amendment Agreement.
SECTION 3. Conditions Precedent. The
effectiveness of the amendments set forth in Section 1 are
subject to the conditions precedent that the Agent shall have
received each of the following, in form and substance
satisfactory to the Agent:
(i) Certified copies of resolutions of the
Board of Directors of the Subordinated Purchaser
approving this Amendment Agreement;
(ii) Favorable opinions of counsel for the
Subordinated Purchaser as to such matters as the Agent
may reasonably request;
(iii) Evidence of compliance with the
provisions of Section 7.01(a) of the RPA with respect
to this Amendment Agreement;
(iv) Evidence of consent of CapMAC to this
Amendment Agreement; and
(v) Evidence of consent of the required
number of banks party to the APA to this Amendment
Agreement.
SECTION 4. Representations and Warranties. (a)
Each of the Trustee, the Owner, the Servicer and the Subordinated
Purchaser confirms that each of the representations and
warranties made by it contained in Exhibit III to the RPA, as
amended by this Amendment Agreement, is correct on and as of the
date hereof as though made on and as of this date.
(b) Each of Charming Shoppes and FSC confirms that
each of the representations and warranties made by it contained
in Section 5 of the Company Agreement, after giving effect to
this Amendment Agreement, is correct on and as of the date hereof
as though made on and as of this date.
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SECTION 5. Confirmation of RPA. Except as
herein expressly amended, the RPA is ratified and confirmed in
all respects and shall remain in full force and effect in
accordance with its terms. Each reference in the RPA to "this
Agreement" shall mean the RPA as amended by this Amendment
Agreement, and as hereinafter amended or restated.
SECTION 6. Governing Law. THIS AMENDMENT AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
SECTION 7. Execution in Counterparts. This
Amendment Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which when taken together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature
page to this Amendment Agreement by telecopier shall be effective
as delivery of a manually executed counterpart of this Amendment
Agreement.
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IN WITNESS WHEREOF, the parties have caused this
Amendment Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
SELLER: FIRST UNION NATIONAL BANK,
not in its individual
capacity but solely as
the Trustee for CHARMING
SHOPPES MASTER TRUST
By:
Title: Vice President
SUBORDINATED
PURCHASER FASHION SPC, INC.
By:
Title: Vice President
OWNER/SERVICER: SPIRIT OF AMERICA NATIONAL BANK
as the Owner and the Servicer
By:
Titla: President
CXC: CXC INCORPORATED
By: Citicorp North America, Inc.
as Attorney-in-Fact
By:
Title: Vice President
AGENT: CITICORP NORTH AMERICA, INC.,
as Agent
By:
Title: Vice President
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Acknowledged and Agreed as to
SECTIONS 2 and 4(b) only:
CHARMING SHOPPES: CHARMING SHOPPES, INC.
By:
Title Vice President
FSC: FASHION SERVICE CORP.
By:
Title Vice President
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Consent of Surety
In accordance with Section 4.02(e) of the Insurance
Agreement dated as of April 4, 1996 among the undersigned, CXC
Incorporated, Spirit of America National Bank and the other
parties thereto, the undersigned hereby consent to the Amendment
to the Receivables Purchase Agreement in the form to which this
Consent of Surety is attached.
CAPITAL MARKETS ASSURANCE CORPORATION
By:
Title:
Dated: December 13, 1996
Consent of APA Bank
In accordance with Section 6 of the Asset Purchase
Agreement date as of April 4, 1996 among Citicorp North America,
Inc., as Agent, the undersigned and the other banks parties
thereto, the undersigned hereby consents to the Amendment to
Receivables Purchase Agreement in the form to which this Consent
of APA Bank is attached.
BANK HAPOALIM B.M. (New York Branch)
By:
Title:
Consent of APA Bank
In accordance with Section 6 of the Asset Purchase
Agreement date as of April 4, 1996 among Citicorp North America,
Inc., as Agent, the undersigned and the other banks parties
thereto, the undersigned hereby consents to the Amendment to
Receivables Purchase Agreement in the form to which this Consent
of APA Bank is attached.
CREDIT COMMUNAL DE BELGIQUE S.A.
By:
Title: General Manager
By:
Title: Vice President
Consent of APA Bank
In accordance with Section 6 of the Asset Purchase
Agreement date as of April 4, 1996 among Citicorp North America,
Inc., as Agent, the undersigned and the other banks parties
thereto, the undersigned hereby consents to the Amendment to
Receivables Purchase Agreement in the form to which this Consent
of APA Bank is attached.
RAIFFEISEN ZENTRALBANK XXXXXXXXXXX XX
By:
Title:
Consent of APA Bank
In accordance with Section 6 of the Asset Purchase
Agreement date as of April 4, 1996 among Citicorp North America,
Inc., as Agent, the undersigned and the other banks parties
thereto, the undersigned hereby consents to the Amendment to
Receivables Purchase Agreement in the form to which this Consent
of APA Bank is attached.
UNITED STATES NATIONAL BANK OF OREGON
By:
Title:
Consent of APA Bank
In accordance with Section 6 of the Asset Purchase
Agreement date as of April 4, 1996 among Citicorp North America,
Inc., as Agent, the undersigned and the other banks parties
thereto, the undersigned hereby consents to the Amendment to
Receivables Purchase Agreement in the form to which this Consent
of APA Bank is attached.
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:
Title:
