CHARMING SHOPPES RECEIVABLES CORP. Seller and Holder of the Exchangeable Seller Certificate SPIRIT OF AMERICA, INC. Servicer and Trustee Charming Shoppes Master Trust AMENDMENT Dated as of October 17, 2007 to SECOND AMENDED AND RESTATED POOLING AND...
EXHIBIT
10.1
CHARMING
SHOPPES RECEIVABLES CORP.
Seller
and Holder of the Exchangeable Seller Certificate
SPIRIT
OF
AMERICA, INC.
Servicer
and
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
Charming
Shoppes Master Trust
AMENDMENT
Dated
as
of October 17, 2007
to
SECOND
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated
as
of November 25, 1997
(as
amended on July 22, 1999, May 8, 2001, August 5, 2004 and March 18,
2005)
THIS
AMENDMENT, dated as of October 17, 2007 (this “Amendment”) is to the
Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997, as amended as of July 22, 1999, as of May 8, 2001, as of
August 5, 2004 and as of March 18, 2005 (the “Agreement”) each by and
among Charming Shoppes Receivables Corp., as seller (the “Seller”) and as
Holder of the Exchangeable Seller Certificate, Spirit of America, Inc., as
servicer (the “Servicer”), and U.S. Bank National Association, as trustee
(the “Trustee”). Any capitalized term not herein defined shall
have the meaning assigned to it in the Agreement.
WHEREAS,
the Seller, the Holder of the Exchangeable Seller Certificate, the Servicer
and
the Trustee desire to amend the Agreement in certain respects as set forth
herein;
WHEREAS,
notice of this amendment and a copy of the form of this Amendment has been
given
to each Purchaser Representative at least ten Business Days prior to the date
hereof;
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
Agreement;
WHEREAS,
each Rating Agency has notified the Seller, the Servicer and the Trustee in
writing that the amendment provided herein shall not result in a reduction
or
withdrawal of the rating of any outstanding Series or Class as to which it
is a
Rating Agency;
NOW
THEREFORE, the Agreement is hereby amended in the following manner:
SECTION
1. Amendments.
(a) Section
1.1 of the Agreement is hereby amended as follows:
(i) by
adding
the following definitions in the appropriate alphabetical order:
“Acquired
Portfolio” shall mean a portfolio of Accounts acquired by the Originator
after September 1, 2007 from any Person (or group of affiliated Persons)
that is not, as of September 1, 2007, an Affiliate of Charming Shoppes,
Inc.
“Affiliated
Brand” means any brand name or trademark now owned or licensed or hereafter
developed, licensed or acquired by Charming Shoppes, Inc. or its present or
future Affiliates, which is used primarily for women’s apparel sales; it being
understood and agreed that as of the date hereof “Affiliated Brand” includes,
but is not limited to, Fashion Bug, Fashion Bug Plus, Lane Xxxxxx, Xxxx Xxxxxx
Outlet, Lane Xxxxxx Woman, Lane Xxxxxx Catalog, Cacique, Petite Sophisticate,
Petite Sophisticate Outlet, Figure Magazine, Catherines and Catherines Plus
Sizes.
“Co-Brand
Percentage” shall mean, at any time, 10% or such higher percentage as the
Servicer shall have designated in a written notice to the Trustee;
provided that Standard & Poor’s shall have notified the Seller or the
Servicer in writing that increasing such percentage will not result in a
reduction or withdrawal of its rating on any outstanding
1
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
Investor
Certificates and the Servicer shall have provided a copy of such notice to
the
Trustee.
(ii) by
deleting the definition of “Co-Branded Program” in its entirety and
substituting the following therefor:
“Co-Branded
Program” means a program of the Originator to originate charges on a general
purpose credit card, including without limitation a card under the Visa®,
MasterCard®, American Express® or Discover® systems, which credit card may be
co-branded with one or more Affiliated Brands as specified in the Cardholder
Guidelines.
(iii) by
deleting the definition of “Corporate Trust Office” in its entirety and
substituting the following therefor:
“Corporate
Trust Office” shall mean the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which office
as of October 17, 2007 is located at EP-MN-WS3D, 00 Xxxxxxxxxx Xxxxxx, Xx.
Xxxx,
Xxxxxxxxx 00000, Attention: Structured Finance/Charming Shoppes
Series 2007-1.
(iv) by
deleting Section 1.1.2 of the definition of “Eligible Account” in
its entirety and substituting the following therefor:
1.1.2 which
has been originated in connection with the extension of credit through a
Specified Program to an Obligor whose application for the extension of credit
was processed through the Originator or an Affiliate of the Originator or which
has been acquired by the Originator from a third party and determined by the
Originator to be in compliance with the Cardholder Guidelines, including those
relating to the extension of credit; providedthat:
|
|
(A)
|
an
Account originated in a Specified Program other than a Private Label
Program or a Co-Branded Program shall be an Eligible Account only
if at or
prior to the designation of such Account to the Trust the Rating
Agency
Condition has been satisfied with respect to the inclusion of Accounts
from such Specified Program;
|
|
|
(B)
|
if
Standard & Poor’s has rated any outstanding Series, an Account
originated in a Co-Branded Program shall be an Eligible Account only
if,
at the time such Account is designated as an Additional Account and
after
giving effect to such designation, the aggregate amount of Principal
Receivables arising in Accounts generated under a Co-Branded Program
as of
the related Addition Cut-Off Date does not exceed the Co-Brand Percentage
of the aggregate Principal Receivables in all Accounts, as of the
last day
of the most recent Due Period; and
|
|
|
(C)
|
an
Account originated in an Acquired Portfolio shall be an Eligible
Account
only if at or prior to the designation of such Account to the Trust
the
Rating
|
2
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
|
|
Agency
Condition has been satisfied with respect to the inclusion of Accounts
from such Acquired Portfolio.
|
(v) by
deleting Section 1.1.4 of the definition of “Eligible Account” in
its entirety and substituting the following therefor:
1.1.4 the
Obligor on which has provided, as its most recent billing address, an address
which is located in the United States, a U.S. Territory or a U.S. Military
P.O.
Box outside the United States; provided, that an Account, the Obligor on
which has provided, as its most recent billing address, an address which is
located in Canada or Mexico shall be an Eligible Account, but only to the extent
that the aggregate amount of Principal Receivables in all such Accounts shall
be
less than 1.0% of the aggregate Principal Receivables of all Accounts averaged
as of the last day of the two most recent consecutive Due Periods; and
provided, further, that the Receivables of any such Account
constituting any such excess over such 1.0% threshold shall not be treated
as
Receivables for purposes of calculating the Seller Interest, the Aggregate
Minimum Seller Interest or Minimum Aggregate Principal Receivables or the
Investor/Purchaser Percentage of any Series;
(vi) by
(A)
deleting the word “or” at the end of clause (v) of the definition of
“Permitted Investments,” (B) renumbering clause (vi) of such
definition to be clause (vii) thereof, and (C) adding the following new
clause (vi) to such definition:
(vi) a
money market fund or a qualified investment fund rated “AAAm” or “AAAm-G” by
Standard & Poor’s and in the highest long-term rating category of Moody’s
(including funds for which the Trustee or any of its Affiliates is investment
manager or advisor); or
(vii) by
deleting the definition of “Private Label Program” in its entirety and
substituting the following therefor:
“Private
Label Program” means the Originator’s program of originating private label
credit card receivables primarily from sales at stores, catalogs and/or
e-commerce websites associated with one or more Affiliated Brands, as specified
in the Cardholder Guidelines.
(viii) by
deleting the definition of “Unaffiliated Retailer Program” in its
entirety and substituting the following therefor:
“Unaffiliated
Retailer Program” means a credit card program of the Originator to allow
holders of any private label credit card associated with one or more of its
Affiliated Brands to use the card at certain unaffiliated retail locations,
as
specified in the Cardholder Guidelines.
(b) Section
2.7(b) of the Agreement is hereby amended as follows:
(i) by
deleting clause (iii) thereof and substituting the following
therefor:
3
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
(iii) the
Seller shall represent and warrant as of each Removal Date that (x)(i) Accounts
were chosen for removal randomly and (ii) no selection procedure was used by
the
Seller which is materially adverse to the interests of the Investor
Certificateholders or any Receivables Purchasers or any Enhancement Provider
or
(y) Accounts were selected because of a third-party cancellation, or expiration
without renewal, of an affinity or private-label arrangement;
(ii) by
adding
the following at the end of such section:
Notwithstanding
the foregoing, any Account that (A) has a Receivables balance equal to zero,
(B)
contains no Receivables which have been charged off as uncollectible in
accordance with the Servicer’s customary and usual manner for charging off such
Accounts, (C) has been irrevocably closed in a manner consistent with the
Servicer’s customary and usual procedures for closing revolving credit card
accounts and (D) has been determined to be inactive may be removed without
satisfying the requirements set forth in this Section.
(c) Section
13.1(b) of the Agreement is hereby amended to add the following after the
end of the first sentence thereof:
Notwithstanding
the foregoing, no amendment described in this Section 13.1(b) shall
become effective if it would cause the Trust to fail to be a QSPE unless the
Holders of Investor Certificates evidencing Undivided Trust Interests
aggregating not less than 66 2/3 of the Investor Interest of each outstanding
Series have expressly agreed (which agreement may be in the form of an amendment
to this Agreement) that the Trust need not be a QSPE.
(d) Section
13.1 of the Agreement is hereby amended to add the following new clause (h)
after clause (g) thereof:
(h) The
Trustee shall be entitled to conclusively rely on the Servicer’s determination
that an amendment described in this Section 13 will not cause the Trust
to fail to be a QSPE, which determination shall be evidenced by the Servicer’s
execution of such amendment.
SECTION
2. Consent
to Execution of the Consent to Purchase and Sale Agreement. The
parties hereto consent to the execution of that certain Consent to Purchase
and
Sale Agreement, of even date herewith, in the form attached hereto as Exhibit
A.
SECTION
3. Agreement
in Full Force and Effect as Amended. In all other respects the
Agreement is confirmed and ratified and shall continue in full force and
effect. Henceforth, references in the Agreement to “the Agreement,”
“this Agreement,” “hereof,” “hereto” or words of similar import shall in each
case be deemed to refer to the Agreement as hereby amended.
4
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
SECTION
4. Effectiveness. The
amendment provided for by this Amendment shall become effective on the date
first set forth above; provided that on or prior to such date the Trustee
shall have received counterparts of this Amendment, duly executed by the parties
hereto.
SECTION
5. Counterparts. This
Amendment may be executed in any number of counterparts and by separate parties
hereto on separate counterparts, each of which when executed shall be deemed
an
original, but all such counterparts taken together shall constitute one and
the
same instrument.
SECTION
6. Governing
Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
5
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
IN
WITNESS WHEREOF, the Seller, the Holder of the Exchangeable Seller Certificate,
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.
CHARMING
SHOPPES
RECEIVABLES CORP.,
Seller
and Holder of
the Exchangeable Seller Certificate
By:___________________________________________
Name: Xxxx
X. Xxxxx
Title: Vice
President
SPIRIT
OF AMERICA,
INC.,
Servicer
By:__________________________________________
Name: Xxxx
X. Xxxxx
Title: Vice
President
U.S.
BANK NATIONAL
ASSOCIATION,
not
in its individual
capacity but solely as the
Trustee
for CHARMING
SHOPPES MASTER TRUST
By:_________________________________________
Name:
Title:
S-1
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
The
undersigned
hereby consent to the above Amendment to
Second
Amended and Restated Pooling
and Servicing
Agreement:
CLIPPER
RECEIVABLES
COMPANY, LLC, as Class
C Holder
and as Class
D-1
Holder for the Series 2004-1
By:__________________________________________
Name:
Title:
STATE
STREET GLOBAL
MARKETS, LLC,
as
successor to State
Street Capital Corporation, as
Administrator
for Clipper
Receivables Company, LLC
By:___________________________________________
Name:
Title:
BARCLAYS
BANK
PLC,
as
Administrator for
Sheffield Capital Corporation under the
Series
2004-VFC
By:__________________________________________
Name:
Title:
S-2
Charming
Shoppes Amendment to
Second
Amended and Restated Pooling
and
Servicing Agreement
EXHIBIT
A
CONSENT
TO PURCHASE AND SALE AGREEMENT
[Attached.]
CONSENT
Dated
as
of October 17, 2007
to
Dated
as
of November 25, 1997
THIS
CONSENT to PURCHASE AND SALE AGREEMENT (“Consent”) is entered into as of
October 17, 2007 by and between SPIRIT OF AMERICA NATIONAL BANK (“Bank”),
a national banking association, as Seller, and CHARMING SHOPPES RECEIVABLES
CORP. (“CSRC”), a Delaware corporation, as Purchaser. Each
capitalized term used but not defined herein has the meaning ascribed thereto
in
the Purchase and Sale Agreement, dated as of November 25, 1997 (as amended
on
July 22, 1999, November 9, 2000 and May 8, 2001, and as the same may be amended,
restated, supplemented or otherwise modified from time to time, the “Purchase
and Sale Agreement”), by and between Bank and CSRC, or, if not defined
therein, in that certain Second Amended and Restated Pooling and Servicing
Agreement, dated as of November 25, 1997 (as amended on July 22, 1999, May
8,
2001, August 5, 2004 and March 18, 2005, and on the date hereof, the “Pooling
and Servicing Agreement”) among Spirit of America, Inc., as Servicer, CSRC, as
Seller, and U.S. Bank National Association, as Trustee
(“Trustee”).
PRELIMINARY
STATEMENTS
A. Bank
wishes to obtain certain consents, and CSRC is willing to extend such waivers
and consents on the terms and subject to the conditions set forth in this
Consent.
B. In
consideration of the foregoing, and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
C. The
Bank expects to acquire from World Financial Network National Bank
(“WFN”), and to convey to CSRC, Receivables and Related Assets which
arise under a portfolio of proprietary credit cards used primarily at Lane
Xxxxxx® stores (the “Lane Xxxxxx Portfolio”) The purchase
price paid by the Bank to WFN at the closing is subject to adjustment to take
into account differences in account balances between the actual account balances
and the closing date estimate thereof, as provided in the Bank’s purchase
agreement with WFN (the “WFN Agreement”). The parties hereto
desire to take such adjustment into account in the purchase price paid by CSRC
to the Bank for the Lane Xxxxxx Portfolio.
Consents
in respect of the Purchase and Sale Agreement. Effective as of
the date hereof, subject to the satisfaction of the condition precedent set
forth in Section 2 below, the Purchase and Sale Agreement is hereby
modified pursuant to the following consents:
The
Bank
is hereby permitted to make adjustments (the “Lane Xxxxxx Adjustments”)
to the Purchase Price for the Lane Xxxxxx Portfolio concurrently with the
corresponding adjustment under the WFN Purchase Agreement, in an amount equal
to
any amount payable by Bank to WFN, or by WFN to the Bank with respect to the
adjustment to the purchase price for the Lane Xxxxxx Portfolio paid by the
Bank
to WFN (the “WFN Adjustment”). Promptly upon determination of
such WFN Adjustment, CSRC shall pay to the Bank, an amount equal to the WFN
Adjustment, if any, payable by the Bank to WFN. On the date of the WFN
Adjustment, the Bank shall pay to CSRC an amount equal to the WFN Adjustment,
if
any, paid by WFN to the Bank.
1
On
the
Distribution Date following any Lane Xxxxxx Adjustment, CSRC and the Bank agree
to settle the amount due under such Lane Xxxxxx Adjustment, either from CSRC
to
the Bank, or from the Bank to CSRC, as applicable, in full in cash.
Condition
Precedent. This Consent shall become effective and be deemed
effective as of the date first above written upon the following conditions
precedent:
Delivery
of an Opinion of Counsel meeting the requirements of Section 7.1(a) of the
Purchase and Sale Agreement; and
Receipt
by the Trustee of fully executed copies of this Consent and that certain
Amendment to the Pooling and Servicing Agreement, of even date
herewith.
Reference
to and Effect on the Purchase and Sale Agreement.
Upon
the
effectiveness of this Consent, each reference in the Purchase and Sale Agreement
to “this Agreement,” “hereunder,” “hereof,” “herein,” “hereby” or words of like
import shall mean and be a reference to the Purchase and Sale Agreement as
modified hereby, and each reference to the Purchase and Sale Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Purchase and Sale Agreement shall mean and be a reference to the
Purchase and Sale Agreement as modified hereby.
Except
as
specifically modified hereby, the Purchase and Sale Agreement and the other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
GOVERNING
LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Execution
in Counterparts. This Consent may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of
which when so executed and delivered shall be deemed to be an original and
all
of which taken together shall constitute but one and the same instrument. A
facsimile copy of a signature hereto shall have the same effect as the original
thereof.
Headings. Section
headings in this Consent are included herein for convenience of reference only
and shall not constitute a part of this Consent for any other
purpose.
2
IN
WITNESS WHEREOF, the parties have caused this Consent to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
CHARMING
SHOPPES
RECEIVABLES CORP.,
as
Purchaser
By:_________________________________________
Name: Xxxx
X. Xxxxx
Title: Vice
President
SPIRIT
OF AMERICA
NATIONAL BANK, as Seller
By:________________________________________
Name: Xxxx
X. Xxxxx
Title: President
S-1
