EXHIBIT 10.1.11
As of January 31, 2001
Charming Shoppes, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Amendment No. 5 to Financing Agreements (this "Amendment")
Ladies and Gentlemen:
In consideration of the mutual agreements contained herein
and other good and valuable consideration, each of the parties to
the Loan Agreement (as hereinafter defined) agree as follows:
1. Capitalized terms used herein shall have the meanings
ascribed thereto in the Second Amended and Restated Loan and
Security Agreement, dated February 28, 1997, by and among
Charming Shoppes, Inc. (the "Company"), certain subsidiaries of
the Company which are parties thereto (collectively, with the
Company, "Borrowers"), Congress Financial Corporation
("Congress") and Charming Shoppes of Delaware, Inc. ("Borrowers'
Agent"), as the same now exists or may hereafter be further
amended, modified, supplemented, extended, renewed, restated or
replaced (the "Loan Agreement"), unless otherwise defined herein.
2. (a) Subject to the terms and conditions hereof,
Congress consents to the formation of a new wholly-owned
subsidiary of the Company, CSIM, Inc, a Delaware corporation
("CSIM"); provided, that: (i) such formation occurs prior to
February 28, 2001; and (ii) as of the date of such formation and
after giving effect thereto, no Event of Default, or act
condition or event which with notice or passage of time or both
would constitute an Event of Default exists or has occurred.
(b) In consideration for Congress' consent as set forth
in Section 2(a) above, Borrowers and Obligors jointly and
severally agree and covenant that:
(i) upon the formation of the CSIM, true and
correct copies of the formation documents of CSIM and written
evidence of updates to Borrowers' certificates of insurance to
add CSIM as a named insured under such policies and certificates
of such updated insurance policy or policies and/or endorsements
naming Congress as loss payee, shall be promptly delivered to
Congress,
(ii) no Borrower nor any Obligor shall, directly
or indirectly, make any loans or advance money or property to
CSIM, or invest in (by capital contribution, dividend or
otherwise) CSIM or make any other payment to CSIM or transfer any
assets or properties to or on behalf of or for the benefit of
CSIM, guarantee or otherwise become liable in any respect for any
obligations of CSIM; except that any Borrower or Obligor may make
loans or advance money or property to, or invest by capital
contribution in CSIM so long as: (aa) the total amount of any
loans, investments or advances by Borrowers and Obligors to CSIM
at any time outstanding shall not exceed $1,000 and (bb) Congress
shall receive a monthly report in form and substance satisfactory
to Congress of the amount of Borrowers= or any Obligors loans,
investments or advances in CSIM and such other information with
respect thereto as Congress may reasonably request, and
(iii) no Borrower nor any Obligor, shall permit
CSIM to, directly or indirectly: (aa) create, incur, assume or
permit to exist any mortgage, pledge, security interest, lien or
encumbrance of any kind upon any of the assets or properties of
CSIM, whether now owned or hereafter acquired or (bb) sell,
assign, lease, transfer, abandon or otherwise dispose of any
stock or indebtedness of CSIM to any other person or any
properties or assets of CSIM to any other person except in favor
of Congress.
3. The Loan Agreement shall be and is amended, effective as
of the date hereof, as follows:
(a) Section 9.13 of the Loan Agreement is amended by
deleting the reference to "$300,000,000" set forth therein and
inserting "$350,000,000" in its stead;
(b) Section 12.1(a) of the Loan Agreement is amended
by deleting the date of "June 30, 2001" set forth therein and
inserting "June 30, 2004" in its stead;
(c) Section 12.1(c) of the Loan Agreement is amended
by deleting the text of such Section in its entirety and
inserting "Intentionally Deleted" in its stead; and
(d) The existing Omnibus Schedule 2 to the Loan
Agreement entitled "Eligible Inventory Locations" is hereby
amended by adding to Section A.4. thereof: "Los Angeles,
California".
4. In consideration of the amendments set forth herein,
Borrowers shall on the date hereof, pay to Congress, and Congress
may, at its option, charge the account of Borrowers maintained by
Congress, a fee in the amount of $562,500, which fee shall
constitute part of the Obligations and is fully earned as of the
date hereof.
5. In addition to the representations, warranties and
covenants heretofore or hereafter made by the Company and the
other Borrowers to Congress pursuant to the Loan Agreement and
the other Financing Agreements, each of the Borrowers hereby
represents, warrants and covenants to and with Congress as
follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery of this
letter and shall be incorporated into and made a part of the
Financing Agreements):
(a) No Event of Default exists or has occurred and is
continuing on the date hereof;
(b) Borrowers hereby agrees that, in addition to all
other terms, conditions and provisions set forth in the other
Financing Agreements, Borrowers shall deliver or cause to be
delivered to Congress, as soon as possible, but in no event later
than March 2, 2001, a UCC-1 financing statement by and between
CSI, as debtor and Congress, as secured party with rider for
filing with the Secretary of State of California, duly
authorized, executed and delivered by CSI; and
(c) this Amendment has been duly authorized, executed
and delivered by the Company and each of the other Borrowers, has
been consented to by each of the other Obligors and is in full
force and effect on the date hereof.
6. This Amendment shall be effective, as of the date
hereof, upon receipt by Congress of Congress shall have received:
(a) this Amendment, duly authorized, executed and delivered by
the Company and each of the other Borrowers and Obligors, and (b)
the fee referred to in Section 4 hereof.
7. This Amendment contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes
all correspondence, memoranda, communications, discussions and
negotiations with respect thereto. Except as expressly set forth
above, no existing defaults or Events of Default and no rights or
remedies of Congress have been or are being waived hereby and no
changes or modifications to the Financing Agreements have been or
are being made or are intended hereby and in all other respects
the Financing Agreements shall continue in full force and effect.
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8. This Amendment may be executed and delivered in
counterparts, all of which together shall constitute a complete
agreement.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
By:__________________________
Title:_________________________
AGREED AND ACCEPTED:
CHARMING SHOPPES, INC.
By:________________________
Title:_______________________
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CHARMING SHOPPES OF DELAWARE, INC.
By:_________________________
Title:_______________________
CSI INDUSTRIES, INC.
By:_________________________
Title:_______________________
FB APPAREL, INC,
By:_________________________
Title:_______________________
BORROWERS' AGENT
CHARMING SHOPPES OF DELAWARE, INC.,
BORROWERS' AGENT
By:_________________________
Title:_______________________
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CONSENTED TO:
By Each of the Obligors
on Exhibit A Annexed Hereto
____________________________
Its:_________________________
By Each of the Obligors
on Exhibit B Annexed Hereto
____________________________
Its:_________________________
EXHIBIT "A" TO AMENDMENT NO. 5
Obligors on behalf of which ▇▇▇▇▇ ▇. ▇▇▇▇▇ has signed as Vice
President:
C.S.A.C., Inc.,
C.S.F., Corp.
EXHIBIT "B" TO AMENDMENT NO. 5
Obligors on behalf of which ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ has signed in the
capacity noted below:
C.S.I.C., Inc. - President
Charm-Fin Stores, Inc. - Vice President
Fashion Bug of California - Vice President
FB Clothing, Inc. - Vice President
International Apparel, Inc. - Vice President
Operating Retail Stores - Vice President
