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EXHIBIT 10.1.5
FIRST AMENDMENT AND ASSIGNMENT
THIS FIRST AMENDMENT AND ASSIGNMENT, dated as of November 25, 1997
(this "Amendment") is to the Series 1994-1 Supplement, dated as of May 4, 1994
(the "Supplement"), by and between Spirit of America National Bank ("Spirit"), a
national banking association, as Seller and Servicer, and First Union National
Bank (f/k/a First Fidelity Bank, National Association), a national banking
association, as Trustee. Any capitalized term not herein defined shall have the
meaning assigned to it in the Supplement.
WHEREAS, Spirit, as Seller and Servicer, and the Trustee are parties to
that certain Pooling and Servicing Agreement dated as of December 24, 1992, as
amended and restated as of May 4, 1994, and as amended by Amendment No. 1, dated
as of December 22, 1995, and Amendment No. 2, dated as of March 22, 1996 (the
"Prior PSA");
WHEREAS, Spirit, as Seller and Servicer, the Trustee and the Cash
Collateral Depositor are parties to that certain Loan Agreement dated as of May
4, 1994 (the "Loan Agreement");
WHEREAS, concurrently herewith (x) the parties hereto are entering into
(i) a Second Amended and Restated Pooling and Servicing Agreement, dated even
herewith (the "Amended Pooling Agreement") amending and restating in its
entirety the Prior PSA, and (ii) an amendment dated even herewith to the Loan
Agreement (as so amended, the "Amended Loan Agreement"), in each case, in order
to, among other things, provide for the substitution of Charming Shoppes
Receivables Corp. ("CRSC"), as Seller, and (y) Spirit and CSRC are entering into
a Purchase and Sale Agreement, dated even herewith, pursuant to which Spirit
will sell Receivables to CSRC in accordance with the terms thereof;
WHEREAS, the parties hereto desire to amend the Supplement in order to
provide for the substitution of CSRC as Seller, and make certain other changes
in connection with such substitution; and
WHEREAS, an Opinion of Counsel for the Seller has been delivered to the
Trustee and each Purchaser Representative pursuant to Section 13.1(a) of the
Amended Pooling Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENT. (a) All references to the "Seller" and to "Spirit
of America", in its capacity as Seller, in the Supplement shall be deemed to be
references to CSRC. All references in the Supplement to the Pooling and
Servicing Agreement and the Loan Agreement shall be references to the Amended
Pooling Agreement and the Amended Loan Agreement, respectively.
(b) Section 9 of the Supplement is hereby amended by deleting the word
"or" at the end of subparagraph (f) thereof, and inserting the following
immediately after subparagraph (g) thereof:
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"(h) failure on the part of the Originator or the Seller (A) to make
any payment or deposit required by the terms of the Purchase Agreement,
on or before the date occurring five days after the date such payment
or deposit is required to be made therein or (B) to observe or perform
in any material respect any covenants or agreements of the Originator
or the Seller, as applicable, set forth in the Purchase Agreement,
which failure has a material adverse effect on the Series 1994-1
Certificateholders (which determination shall be made without regard to
whether any funds are on deposit in the Cash Collateral Account) and
which continues unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Originator or the Seller, as
applicable, by the Seller, Servicer or Trustee, or to the Originator or
the Seller, as applicable, and the Trustee by the Cash Collateral
Depositor or the Holders of Series 1994-1 Certificates evidencing
Undivided Trust Interests aggregating not less than 50% of the Investor
Interest of this Series 1994-1, and continues to affect materially and
adversely the interests of the Series 1994-1 Certificateholders for
such period; or
(i) any representation or warranty made by the Originator in the
Purchase Agreement, or any information contained in a computer file or
microfiche or written list required to be delivered by the Originator
pursuant to Section 1.1 or 2.4 of the Purchase Agreement, (i) shall
prove to have been incorrect in any material respect when made or when
delivered, which continues to be incorrect in any material respect for
a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Seller by the Servicer or the Trustee, or to the Seller and the
Trustee by the Holders of the Series 1994-1 Certificates evidencing
Undivided Interests aggregating more than 50% of the Investor Interest
of this Series 1994-1, and (ii) as a result of which the interests of
the Series 1994-1 Certificateholders are materially and adversely
affected (which determination shall be made without regard to whether
any funds are on deposit in the Cash Collateral Account) and continue
to be materially and adversely affected for such period; provided,
however, that a Series 1994-1 Early Amortization Event pursuant to this
subsection 9(i) shall not be deemed to have occurred hereunder if the
Originator has accepted reassignment of the related Receivable, or all
of such Receivables, if applicable, during such period in accordance
with the provisions of the Purchase Agreement;"
(c) The penultimate clause of Section 9 of the Supplement is hereby
amended by amending the reference to "subparagraph (a), (b) or (e)" to be a
reference to "subparagraph (a), (b), (e), (h) or (i)".
SECTION 2. CASH COLLATERAL ACCOUNT ASSIGNMENT. CSRC, in its capacity as
Seller under the Supplement, as amended herein, hereby assigns, sets-over,
conveys, pledges and grants a security interest and lien to the Trustee for the
benefit of the Series 1994-1 Certificateholders and the Cash Collateral
Depositor, as their interests appear in the Supplement, as amended herein (which
interest in the case of the Cash Collateral Depositor shall be subject to the
prior interest of the Series 1994-1 Certificateholders to the extent provided in
the Supplement, as amended herein, and in the Amended Loan Agreement) in all of
CSRC's right,
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title and interest (if any) in and to all property or amounts held or on deposit
in the Cash Collateral Account, and all proceeds thereof, as collateral security
for the amounts payable from time to time to the Series 1994-1
Certificateholders and owing to the Cash Collateral Depositor from the Cash
Collateral Account pursuant to Article IV of the Supplement, as amended herein,
in respect of the Series 1994-1 Certificates.
SECTION 3. EFFECTIVENESS. The amendments set forth in Section 1 and the
assignment set forth in Section 2 above shall become effective on the date on
which (i) the Servicer shall have received counterparts of this Amendment
executed by CSRC, as Seller, Spirit, as Servicer, and the Trustee, and (ii) each
of the conditions precedent to the effectiveness of the Amended Pooling and
Servicing Agreement are satisfied or waived.
SECTION 4. MISCELLANEOUS. (a) As herein amended, the Supplement (as so
amended, the "Amended Supplement"), shall remain in full force and effect and is
hereby ratified and confirmed in all respects. After the effectiveness hereof,
all references in the Loan Agreement, the Pooling and Servicing Agreement, any
other Supplement, and any similar document to the "Series 1994-1 Supplement" or
similar terms shall refer to the Amended Supplement.
(b) This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts, and each such counterpart shall
be deemed to be an original but all such counterparts shall together constitute
one and the same Amendment.
(c) Spirit agrees to pay the reasonable costs and expenses of the
Trustee (including reasonable attorneys' fees and charges) in connection with
the negotiation, preparation, execution and delivery of this Amendment.
(d) This Amendment shall be construed in accordance with and governed
by the Laws of the State of New York, without giving effect to its conflicts of
law provisions.
(e) All notices to CSRC under the Amended Supplement shall be addressed
to Charming Shoppes Receivables Corp., c/o Charming Shoppes, Inc., 000 Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel.
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Amendment to be duly executed by their respective officers as of the
day and year first above written.
SPIRIT OF AMERICA NATIONAL BANK,
as Servicer
By:
Name: Xxxx X. Xxxxx
Title: President
CHARMING SHOPPES RECEIVABLES CORP.,
as Seller
By:
Name: Xxxx X. Xxxxxxx
Title: President
FIRST UNION NATIONAL BANK, as Trustee
By:
Name: Xxxxxx Xxxxxx
Title: Vice President
