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EXHIBIT 10.1(b)
FORM OF FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of ________, 1999, is
to the Purchase and Sale Agreement, dated as of November 25, 1997 (the "Purchase
Agreement") between SPIRIT OF AMERICA NATIONAL BANK., a national banking
association ("Spirit"), as Seller, and CHARMING SHOPPES RECEIVABLES CORP.
("CSRC"), as Purchaser. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings assigned in the Purchase Agreement.
W I T N E S S E T H:
WHEREAS, Spirit and CSRC have entered into the Purchase Agreement
pursuant to which Spirit transfers Receivables to CSRC from time to time;
WHEREAS, CSRC is a party to the Pooling and Servicing Agreement
pursuant to which CSRC transfers Receivables to the Trust from time to time and
Spirit acts as Servicer; and
WHEREAS, Spirit and CSRC desire to amend the Purchase Agreement to
modify the calculation of the purchase price paid by CSRC for the Receivables
transferred thereunder and to make certain other changes to reflect the
assignment of the servicing duties under the Pooling and Servicing Agreement by
Spirit to Spirit of America, Inc. ("Spirit, Inc.").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendments. (a) Section 3.1(b) of the Purchase Agreement is
hereby amended and restated in its entirety to read as follows::
"(b) The purchase price (the "the Purchase Price") for each
Receivable (and the Related Assets with respect thereto) Conveyed to
the Purchaser after the Effective Date shall equal a specified
percentage (the "Specified Percentage") of the Outstanding Balance of
such Receivable. Initially, the Specified Percentage will equal 102%.
Periodically, the Purchaser and the Seller may change the Specified
Percentage to any percentage upon which they agree in writing; provided
that (i) any such change to the Specified Percentage shall be based
upon changes in historical losses on the Receivables and the
Purchaser's costs of funds, and (ii) the Specified Percentage shall
never be less than 100%. The Purchaser shall remit the Purchase Price
for Receivables (and their Related Assets) Conveyed on each day, plus
any deferred Purchase Price for Receivables (other than Existing
Assets) Conveyed on any prior day and their Related Assets, to the
Seller on a daily basis, to the extent the Purchaser has cash available
therefor. The Purchaser will draw on all resources available to it,
including Collections allocable to it and amounts available to be drawn
under any liquidity facilities, to remit the Purchase Price in full on
each day. On each Distribution Date after the Effective
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Date, the Purchaser and the Seller shall settle as to any remaining
Purchase Price or adjustments thereto for Receivables and Related
Assets (other than Existing Assets) Conveyed during the related Due
Period. Prior to each Distribution Date, the Purchaser and the Seller
shall determine (x) the aggregate amount of conveyances made during the
related Due Period, (y) the aggregate Purchase Price for Receivables
and Related Assets Conveyed during that Due Period, and (z) the
aggregate amount of payments in respect of such Purchase Price that
have been previously made by the Purchaser.
(c) Any portion of the Purchase Price for Receivables and
Related Assets Conveyed during any Due Period that is not paid under
subsection (b) above on the day on which such Receivables are Conveyed
shall be treated as deferred Purchase Price and shall be payable from
time to time as provided in subsection (b). The Purchaser shall pay
interest on the deferred Purchase Price outstanding from time to time
under this Agreement at a variable rate per annum equal to the rate of
interest published in the Wall Street Journal as the "prime rate" as of
the last Business Day of the most recent Due Period. Such interest
shall be computed on the basis of the actual number of days elapsed and
a 365-day year and shall be paid as provided in subsection (b).
For administrative convenience, interest on such deferred
Purchase Price and on any loans described in Section 3.3 shall be
calculated on the following basis. On each Distribution Date, the
Purchaser and the Seller shall determine whether, after giving effect
to subsection (b), any deferred Purchase Price is outstanding with
respect to Receivables Conveyed during the related (or any earlier) Due
Period and their Related Assets and whether there is any loan
outstanding from the Purchaser to the Seller. Any such outstanding
deferred Purchase Price or outstanding loan is referred to below as an
"Intercompany Balance". The Purchaser and Seller will then determine
the arithmetic mean of the Intercompany Balances on that and the
immediately preceding Distribution Date (or on such Distribution Date
and the Effective Date, in the case of the first Distribution Date),
treating any deferred Purchase Price as a positive number and any loan
as a negative number for purposes of this calculation. If such
arithmetic mean is a positive number, then the amount of deferred
Purchase Price outstanding on each day during the related Due Period
shall be deemed (solely for purposes of calculating interest) to have
equaled such positive number (and the amount of loans outstanding on
each day during such Due Period shall be deemed to have been zero).
Conversely, if such arithmetic mean is a negative number, then the
principal amount of the loan outstanding on each day during the related
Due Period shall be deemed (solely for purposes of calculating
interest) to have equaled the absolute value of such negative number
(and the amount of deferred Purchase Price outstanding on each day
during such Due Period shall be deemed to have been zero)."
(d) Section 3.2 of the Purchase Agreement is hereby amended by deleting
each reference to the phrase "and Deferred Originator Payments" from paragraphs
(a) and (b) thereof.
(e) Section 7.14 of the Purchase Agreement is hereby amended by
deleting the last sentence thereof in its entirety and substituting the
following therefor:
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"The Seller hereby acknowledges and agrees that it has no claim to or
interest in either of the Collection Account or any Series Account."
SECTION 2. Acknowledgment. Each of Spirit and CSRC hereby acknowledge
and agree that from and after the Amendment Date (defined below) (x) Spirit Inc.
shall be the Servicer under the Pooling and Servicing Agreement and (y)
notwithstanding anything to the contrary set forth in Section 7.4 of the
Purchase Agreement, all notices required to be given to the Servicer under the
Purchase Agreement shall be sent to Spirit of America, Inc., c/o Charming
Shoppes, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel.
SECTION 3. Amendment Date. This Amendment shall become effective upon
the date (the "Amendment Date") on which (x) Spirit shall have received executed
counterpart signatures pages of this Amendment from each of the parties hereto,
(y) all conditions to the effectiveness of this Amendment pursuant to Section
7.1 of the Purchase Agreement shall have been satisfied and (z) the First
Amendment dated as of the date hereof to the Pooling and Servicing Agreement
shall have become effective.
SECTION 4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any provision hereof, and the
unenforceability of any provision hereof, and the unenforceability of one or
more provisions of this Amendment in one jurisdiction shall not have the effect
of rendering such provision or provisions unenforceable in any other
jurisdiction.
SECTION 6. Reference to the Purchase Agreement. Each reference in the
Purchase Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import, and references to the Purchase Agreement in any other document,
instrument or agreement executed and/or delivered in connection therewith,
shall, in each case, mean and be a reference to the Purchase Agreement as
amended hereby. Except as otherwise amended by this Amendment, the Purchase
Agreement shall continue in full force and effect and is hereby ratified and
confirmed.
SECTION 7. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
SPIRIT OF AMERICA NATIONAL BANK
By:
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Name:
Title:
CHARMING SHOPPES RECEIVABLES CORP.
By:
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Name:
Title:
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