EXHIBIT 10.1.17
Dated as of December 27, 1999
Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Re: Amendment No. 3 to Second Amended and Restated
Loan and Security Agreement, dated February 28, 1997 (as
amended and supplemented, the "Loan Agreement") among
Charming Shoppes, Inc. (the "Company"), certain subsidiaries
of the Company which are parties thereto (collectively, with
the Company, "Borrowers"), Borrowers' Agent and
Congress Financial Corporation ("Congress")
Gentlemen:
In consideration of the mutual agreements contained herein and other
good and valuable consideration, each of Borrowers, Borrowers' Agent and
Congress agree as follows:
1. Capitalized terms used herein shall have the meanings ascribed
thereto in the Loan Agreement, unless otherwise defined herein.
2.
3. The Loan Agreement shall be and is amended, effective as of the
date hereof, as follows:
4.
a. The following definition shall be added to Section 1 of the
Agreement:
b.
"Net Recovery Percentage" shall mean, at any applicable
time, a fraction expressed as a percentage (a) the
numerator of which is the amount equal to the appraised
recovery value of the aggregate quantity of the types
of categories of the Inventory at such time on a "going
out of business sale" basis as set forth in the most
recent appraisal of Inventory received by Lender in
accordance with Section 7.3(d) hereof, net of operating
expenses, liquidation expenses and commissions, and (b)
the denominator of which is the cost at such time of
the aggregate quantity of such types and categories of
the Inventory.
a. Section 2.1(a) of the Loan Agreement is amended by deleting
the words:
b.
"(i) the lesser of (A) fifty (50%) percent multiplied
by the value of Eligible Inventory, or (B) twenty-five
(25%) percent of the Retail Sales Price of the Eligible
Inventory, less"
and by inserting in its stead:
"(i) the lesser of (A) sixty (60%) percent of the Value
of the Eligible Inventory, (B) eighty (80%) percent of
the Net Recovery Percentage multiplied by the cost of
the Eligible Inventory, or (C) twenty-five (25%)
percent of the Retail Sales Price of the Eligible
Inventory, less"
a. Section 1.47 of the Loan Agreement is amended by providing
that the term "Interest Rate" shall mean (but only as to Prime Rate Loans)
a rate equal to the Prime Rate, provided, that, the Interest Rate as set
forth in the proviso to Section 1.47 (but only as to Prime Rate Loans)
shall mean, the rate of two (2%) percent per annum in excess of the Prime
Rate;
a. Section 12.1(a) of the Loan Agreement is amended by deleting
the date of "June 1, 2000" set forth therein and inserting "June 30, 2001"
in its stead;
b.
c. Section 12.1(c) of the Loan Agreement is amended by deleting
the date "June 1, 2000" set forth therein and inserting the date "June 30,
2001" in its stead.
d.
e. Section 12.1(c) is also amended by, immediately before the
proviso therein, (i) deleting the date "December 1, 1999" set forth therein
and inserting the date "December 1, 2000" in its stead, and (ii) deleting
the date "November 30, 1999", set forth therein and inserting the date
"November 30, 2000" in its stead.
f.
2. Congress agrees that the Company and Charming Shoppes of
Delaware, Inc. may execute guaranties of the obligations of any of the MW
Companies (as defined in that certain Letter Agreement dated July 30, 1999)
or any Subsidiary thereof, and guaranties of the obligations of Xxxxxxxxx
Stores (as defined in that certain Letter Agreement dated November __,
1999) or any Subsidiary thereof, provided, that, the aggregate amount
guaranteed thereunder does not exceed $40,000,000 at any time. The
following language contained in the Letter Agreement dated July 30, 1999 is
hereby deleted: "This will also confirm that Congress agrees that the
Company and Charming Shoppes of Delaware, Inc. may execute guaranties of
the obligations of any of the MW Companies or any Subsidiary thereof,
provided, that, the aggregate amount guaranteed thereunder does not exceed
$20,000,000 in the aggregate at any time."
3.
4. 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);
5.
a. No Event of Default exists or has occurred and is continuing
on the date of this Amendment; and
b.
c. this Amendment has been duly 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.
d.
6. This Amendment (a) shall be effective, as of the date hereof,
upon execution of this letter by the Borrowers and Congress, and (b)
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.
7.
8. This Amendment may be executed and delivered in counterparts, all
of which together shall constitute a complete agreement.
9.
10. Very truly yours,
11.
12. CONGRESS FINANCIAL CORPORATION
13.
14. By:___________________________
15.
16. Title:________________________
17.
18. AGREED AND ACCEPTED:
19.
20. CHARMING SHOPPES, INC.
21.
22. By:_________________________
23.
24. Title:______________________
25.
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
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:______________________
CONSENTED TO:
By Each of the Obligors
on the List Annexed Hereto
By: ____________________________
Its: ____________________________
