EXHIBIT 4.11
2/12/03
AMENDMENT NO. 5 TO FINANCING AGREEMENTS
AMENDMENT No. 5, dated February 12, 2003, by and among Congress Financial
Corporation, a Delaware corporation, in its capacity as Administrative Agent,
Collateral Agent, Joint Lead Arranger and Joint Bookrunner (in such capacity,
"Agent") for the financial institutions from time to time party to the Loan
Agreement (as hereinafter defined) as lenders (each individually, a "Lender" and
collectively, "Lenders"), Charming Shoppes, Inc., a Pennsylvania corporation
("Parent"), Charming Shoppes of Delaware, Inc., a Pennsylvania corporation ("CS
Delaware"), CSI Industries, Inc., a Delaware corporation ("CSI"), FB Apparel,
Inc., an Indiana corporation ("FB Apparel"), Catherines Stores Corporation, a
Tennessee corporation ("Catherines") and Lane ▇▇▇▇▇▇, Inc., a Delaware
corporation ("LB", and, together with Parent, CS Delaware, CSI, FB Apparel and
Catherines hereinafter referred to each individually, as a "Borrower" and
collectively, as "Borrowers"), and CS Delaware, in its capacity as agent for
itself as a Borrower and for the other Borrowers ("Borrowers' Agent").
W I T N E S S E T H :
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WHEREAS, Agent, ▇.▇. ▇▇▇▇▇▇ Business Credit Corp, a Delaware corporation,
in its capacity as Co-Agent, Joint Lead Arranger and Joint Bookrunner under the
Loan Agreement (in such capacity, "Co-Agent"), Lenders, Borrowers and Borrowers'
Agent have entered into financing arrangements pursuant to which Lenders have
made and may make loans and advances and provide other financial accommodations
to Borrowers as set forth in the Loan and Security Agreement, dated August 16,
2001, by and among Lenders, Agent, Co-Agent, Borrowers and Borrowers' Agent, as
amended by Amendment No. 1, dated as of January 12, 2002, Amendment No. 2, dated
as of May 17, 2002, Amendment No. 3, dated as of July 29, 2002 (effective as of
August 16, 2001), Amendment No. 4, dated September 23, 2002 (and as may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement", and together with all agreements,
documents and instruments at any time executed and/or delivered in connection
therewith or related thereto, as from time to time amended, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Financing Agreements");
WHEREAS, Borrowers and Borrowers' Agent have requested that Agent agree to
make certain amendments to the Financing Agreements and Agent is willing to
agree to such amendments, subject to the terms and conditions contained herein;
and
WHEREAS, by this Amendment ▇▇. ▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and Borrowers' Agent
desire and intend to evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
and covenants contained herein, and subject to the satisfaction of the
conditions set forth in Section 6 hereof, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definition. As used herein, the following term shall
have the meaning given to it below and the Loan Agreement shall be deemed
and is hereby amended to include, in addition and not in limitation of, the
following definition:
"Amendment No. 5" shall mean this Amendment No. 5 to Financing
Agreements by and among Agent, Borrowers' Agent and Borrowers, as the
same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated, or replaced, and the Loan Agreement shall
be deemed and is hereby amended to include, in addition and not in
limitation, such definition.
(b) Amendment to Definitions. All references to the term "Financing
Agreements" in the Loan Agreement shall be deemed and each such reference
is hereby amended to include, in addition and not in limitation, this
Amendment No. 5 and all other agreements, documents and instruments at any
time executed and/or delivered by any Borrower, Borrowers' Agent or any
other person in connection herewith, as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or
replaced.
(c) Interpretation. All capitalized terms used herein shall have the
meanings assigned thereto in the other Financing Agreements, unless
otherwise defined herein. All references to the plural herein shall also
mean the singular and all references to the singular herein shall also mean
the plural, in each case unless otherwise required by the context of the
use thereof.
2. Investment Property. Subject to the terms and conditions hereof and
notwithstanding anything to the contrary contained in the Loan Agreement, Agent
hereby agrees and Agent shall instruct the securities intermediary, commodity
intermediary or other person who has custody, control or possession of any
investment property (collectively, "Intermediary") of any Borrower or Obligor
subject to an Investment Property Control Agreement to comply with entitlement
orders issued or originated by such Borrower or Obligor (to the extent such
entitlement orders do not conflict with instructions issued by Agent to such
Intermediary) concerning the investment property account until such time as
Agent delivers a written notice to such Intermediary which states Agent is
thereby exercising exclusive control over such investment property account.
Agent will only send such notices of exclusive control to the Intermediaries at
any time upon and after the occurrence of a Cash Dominion Event.
3. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrowers and Borrowers' Agent to Agent, Co-Agent and Lenders pursuant to the
Financing Agreements, Borrowers and Obligors hereby jointly and severally
represent, warrant and covenant with and to Agent, and Lenders as follows (which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof and shall be incorporated into and made a part of
the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment No. 5
(after giving effect to the amendments to the Financing Agreements made by
this Amendment No. 5);
(b) This Amendment No. 5 has been duly executed and delivered by
Borrowers, Obligors and Borrowers' Agent and this Amendment No. 5 and the
other Financing Agreements are in full force and effect as of the date
hereof, and the agreements and obligations of Borrowers, Obligors and
Borrowers' Agent contained herein and therein constitute legal, valid and
binding obligations of Borrowers and Borrowers' Agent enforceable against
Borrowers, Obligors and Borrowers' Agent in accordance with their
respective terms;
(c) All of the representations and warranties set forth in the Loan
Agreement as amended hereby, and the other Financing Agreements, are true
and correct in all material respects, except to the extent any such
representation or warranty is made as of a specified date, in which case
such representation or warranty shall have been true and correct as of such
date.
4. Conditions Precedent. The consents and amendments to the Loan Agreement
set forth herein shall be effective only upon the satisfaction of each of the
following conditions in a manner satisfactory to Agent:
(a) receipt by Agent of an original of this Amendment, duly
authorized, executed and delivered by each of the parties hereto;
(b) receipt by Agent of evidence, in form and substance satisfactory
to Agent, that all required consents or approvals of any persons other than
Agent to the arrangements contemplated herein have been obtained;
(c) all representations and warranties contained herein and in the
Loan Agreement shall be true and correct in all material respects; and
(d) after giving effect to the amendments to the Loan Agreement
provided in this Amendment, no Event of Default shall exist or have
occurred and no event, act or condition shall have occurred or exist which
with notice or passage of time or both would constitute an Event of
Default.
5. Effect of this Amendment No. 5 This Amendment No. 5 and the instruments
and agreements delivered pursuant hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersede all
prior oral or written communications, memoranda, proposals, negotiations,
discussions, term sheets and commitments with respect to the subject matter
hereof and thereof. Except as expressly consented to and amended pursuant
hereto, no other changes or modifications to the Financing Agreements or waivers
of or consents under any provisions thereof are intended or implied, and in all
other respects the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date hereof. To
the extent that any provision of the Loan Agreement or any of the other
Financing Agreements are inconsistent with the provisions of this Amendment No.
5, the provisions of this Amendment No. 5 shall control.
6. Further Assurances. Borrowers and Borrowers' Agent shall execute and
deliver such additional documents and take such additional action as may be
reasonably requested by Agent to effectuate the provisions and purposes of this
Amendment No. 5.
7. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York without regard to principles of
conflicts of laws, but excluding any rule of law that would cause the
application of the law of any jurisdiction other that the laws of the State of
New York.
8. Binding Effect. This Amendment No. 5 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This Amendment No. 5 may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 5, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto. Delivery of an executed counterpart of this
Amendment No. 5 via telecopier shall have the same force and effect as delivery
of an original executed counterpart of this Amendment No. 5. Any party
delivering an executed counterpart of this Amendment No. 5 via telecopier also
shall deliver an original executed counterpart of this Amendment No. 5, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 5 as to such
party or any other party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to
be duly executed and delivered by their authorized officers on the date and year
first above written.
BORROWERS
CHARMING SHOPPES, INC.
By: ____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
CHARMING SHOPPES OF DELAWARE, INC.
By: ____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
CSI INDUSTRIES, INC.
By: _____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
FB APPAREL, INC.
By: ____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
LANE ▇▇▇▇▇▇, INC.
By: _____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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CATHERINES STORES CORPORATION
By: _____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
BORROWERS' AGENT
CHARMING SHOPPES OF DELAWARE, INC.,
as Borrowers' Agent
By: ___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
AGENT
CONGRESS FINANCIAL CORPORATION,
as Administrative Agent
By: _______________________________
Title:______________________________
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CONSENTED TO:
By Each of the Obligors
on Exhibit A Annexed Hereto
___________________________
Its: In the capacity set forth on Exhibit A
By Each of the Obligors
on Exhibit B Annexed Hereto
___________________________
Its: Vice President
