EXHIBIT 10.3
________________________________________________________________________________
CERTIFICATE PURCHASE AGREEMENT
among
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
CHARMING SHOPPES RECEIVABLES CORP.,
as Seller
SPIRIT OF AMERICA, INC.,
as Servicer
and
THE CLASS C HOLDERS DESCRIBED HEREIN
dated as of November 22, 2002
________________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I Definitions..................................................1
SECTION 1.1 Defined Terms...........................................1
SECTION 1.2 Other Definitional Provisions...........................4
ARTICLE II Amount and Terms of Class C Certificates.....................4
SECTION 2.1 Purchase................................................4
SECTION 2.2 Spread Account Funding..................................4
SECTION 2.3 Interest Rate; Payment Dates............................4
SECTION 2.4 Payments................................................4
SECTION 2.5 Spread Account..........................................5
SECTION 2.6 Nonrecourse Obligation..................................6
ARTICLE III Conditions Precedent.........................................6
SECTION 3.1 Related Agreements......................................6
SECTION 3.2 Certificate Issuance....................................6
SECTION 3.3 Spread Account..........................................6
ARTICLE IV Covenants of the Seller and Servicer.........................6
SECTION 4.1 Certificates............................................6
SECTION 4.2 Monthly Status Reports..................................7
SECTION 4.3 Servicer Default........................................7
SECTION 4.4 Rule 144A Information...................................7
SECTION 4.5 Funding Periods.........................................7
ARTICLE V Representations, Warranties and Covenants of the Third
Party Investors and the Trustee.........................7
SECTION 5.1 Representations, Warranties and Covenants of the
Third Party Investors..............................7
SECTION 5.2 Representations, Warranties and Covenants of the
Trustee............................................8
ARTICLE VI Miscellaneous................................................8
SECTION 6.1 Amendments and Waivers..................................8
SECTION 6.2 Governing Law...........................................9
SECTION 6.3 No Waiver...............................................9
SECTION 6.4 Severability............................................9
SECTION 6.5 Termination.............................................9
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TABLE OF CONTENTS
Page
SECTION 6.6 Transfer Restrictions...................................9
SECTION 6.7 Notices................................................10
SECTION 6.8 Survival of Representations and Warranties.............10
SECTION 6.9 Exclusive Benefit......................................10
SECTION 6.10 Limitation of Remedies.................................10
SECTION 6.11 Counterparts...........................................11
SECTION 6.12 Entire Agreement.......................................11
SECTION 6.13 Headings...............................................11
SECTION 6.14 Nonpetition Agreement..................................11
SECTION 6.15 Waiver of Jury Trial...................................11
SCHEDULE I Initial Class C Holder
EXHIBIT A.................................Form of Servicer Payment Instructions
EXHIBIT B...............................Form of Purchaser Representation Letter
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CERTIFICATE PURCHASE AGREEMENT, dated as of November 22, 2002,
among WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee (together with its
successors and assigns, the "Trustee") for the Charming Shoppes Master Trust
(the "Trust"), SPIRIT OF AMERICA, INC., a Delaware corporation ("Spirit of
America"), as Servicer, CHARMING SHOPPES RECEIVABLES CORP., a Delaware
corporation ("CSRC"), as Seller, and the purchaser of the Class C Certificates
(the "Class C Certificates") named on the signature pages of this Agreement (the
"Initial Class C Holder"; and together with their respective permitted
transferees, the "Class C Holders").
WHEREAS the Seller, the Servicer and the Trustee have entered
into a Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997 (as amended on July 22, 1999 and on May 8, 2001 and as the
same may from time to time be further amended, modified or otherwise
supplemented, the "Pooling and Servicing Agreement"), for the Trust and the
Series 2002-1 Supplement, dated as of November 20, 2002 to the Pooling and
Servicing Agreement (the "Supplement");
WHEREAS the Trust proposes to issue and sell certain Investor
Certificates, designated as the Class A Certificates, the Class B Certificates,
the Class C Certificates, and the Class D Certificates, pursuant to the Pooling
and Servicing Agreement and the Supplement; and
WHEREAS it is a condition to the issuance of the Class A
Certificates and Class B Certificates that the Initial Class C Holder enters
into this Agreement and purchases the Class C Certificate provided for herein;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby expressly acknowledged, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. Unless otherwise defined herein,
all terms used herein which are defined in the Pooling and Servicing Agreement
or the Supplement shall have the meanings assigned thereto in the Pooling and
Servicing Agreement or the Supplement, as the case may be, and the following
terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Agreement" shall mean this Certificate Purchase Agreement, as
amended, supplemented or otherwise modified from time to time.
"Available Funds" shall mean, with respect to each
Distribution Date, the sum of (a) the amount distributed by the Servicer or the
Trustee (acting in accordance with instructions of the Servicer) for application
under this Agreement pursuant to subsection 4.11(j) of Article IV under Section
7 of the Supplement and (b) Investment Earnings, if any, available to be paid
from the Spread Account pursuant to Sections 2.5.
"Class C Certificate Rate" shall mean (x) with respect to the
portion of the Class C Investor Interest included in the Total Pre-Funded Amount
and held by the Initial Class C Holder, 0% per annum; and (y) with respect to
the remainder of the Class C Investor Interest, 6.0% per annum; provided,
however, that on and after the Investor Purchase Date, the Class C Certificate
Rate shall be a rate, which may be a different fixed rate or a floating rate of
LIBOR plus a spread, agreed upon by the Third Party Investors and the Initial
Class C Holder; provided that the Class C Certificate Rate shall in no event
exceed 7.5% per annum.
"Class C Certificates" has the meaning assigned thereto in the
preamble.
"Class C Expected Final Payment Date" shall mean the April
2008 Payment Date.
"Class C Holders" shall have the meaning assigned thereto to
in the preamble to this Agreement.
"Class C Reduction Amount" shall mean, on any day, the
aggregate unreimbursed amount by which the Class C Investor Interest has been
reduced below the Class C Initial Investor Interest for reasons other than the
payment of principal to the Class C Certificateholders.
"Class C Required Amount" means, with respect to any
distribution date, the amount required to be paid on such date in respect of the
Class C Servicing Fee, the Class C Monthly Interest, the Class C Deficiency
Amount and the Class C Investor Loss Amount, together with the amount necessary
to reimburse the Class C Certificateholders for any unreimbursed Class C
Reduction Amount.
"Closing Date" shall mean November 22, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commission" shall mean the Securities and Exchange
Commission.
"CSRC" has the meaning assigned thereto in the preamble.
"Dollars" and "$" shall mean dollars in lawful currency of the
United States of America.
"Excess Yield Percentage" shall mean, with respect to any
Distribution Date, the result (expressed as a percentage) of a fraction, the
numerator of which is the product of (a) twelve, times (b) the Excess Spread for
such Distribution Date, minus the Shared Excess Finance Charge Collections
included in the calculation of Excess Spread for such Distribution Date, and the
denominator of which is the Series Investor Interest for such Distribution Date.
"GAAP" shall mean United States generally accepted accounting
principles.
"Initial Class C Holder" shall have the meaning assigned
thereto in the preamble of this Agreement.
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"Insolvency Event" shall mean, with respect to any Person,
that any proceeding shall be instituted by or against such Person seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, conservatorship or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian, conservator,
sequestrator or other similar official for it or for any substantial part of its
property.
"Investment Earnings" shall mean, with respect to any
Distribution Date, all earnings on Spread Account investments (net of losses and
investment expenses) during the Interest Period ending on such Distribution
Date.
"Investor Purchase Date" shall mean the date on which the
Third Party Investors purchase an interest in the Class C Certificates from the
Initial Class C Holder.
"Pooling and Servicing Agreement" has the meaning assigned
thereto in the recitals.
"Proposed Transfer" shall have the meaning assigned thereto in
Section 7.8(c).
"Required Class C Holders" means Holders of Class C
Certificates representing more than 50% of the Class C Investor Interest.
"Required Spread Account Amount" means, (i) during a Spread
Account Funding Period in effect after the Investor Purchase Date, an amount
equal to that agreed upon by the Initial Class C Holder and the Third Party
Investors and (ii) at all other times, $0.
"Spirit of America" has the meaning assigned thereto in the
preamble.
"Spread Account" has the meaning assigned thereto in Section
2.5 of this Agreement.
"Spread Account Funding Period" shall mean any period
following the Investor Purchase Date which shall commence and end at such times
as the Initial Class C Holder and the Third Party Investors shall agree in an
amendment to this Agreement executed on the Investor Purchase Date. It is
anticipated that such period shall be determined by reference to the Excess
Yield Percentage for a number of preceding Due Periods.
"Supplement" has the meaning assigned thereto in the recitals.
"Third Party Investors" means the initial purchasers of an
interest in the Class C Certificates from the Initial Class C Holder.
"Trust" has the meaning assigned thereto in the preamble.
"Trustee" has the meaning assigned thereto in the preamble.
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SECTION 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in Section 1.1
and accounting terms partly defined in Section 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection, Schedule, Attachment and Exhibit references are to this Agreement,
unless otherwise specified. The words "including" and "include" shall be deemed
to be followed by the words "without limitation."
ARTICLE II
Amount and Terms of Class C Certificates
SECTION 2.1 Purchase. (a) Subject to terms and conditions
hereof, the Initial Class C Holder hereby agrees to purchase on the Closing Date
a Class C Certificate in a principal amount equal to the amount set forth
opposite its name in Schedule I hereto for a purchase price equal to 100% of
such principal amount.
(b) Except as otherwise set forth herein, all rights of any
Class C Holder with respect to any Class C Certificate shall be governed by the
Pooling and Servicing Agreement and the Supplement.
SECTION 2.2 Spread Account Funding. On each Distribution Date,
the Trustee (at the direction of the Servicer) shall distribute Available Funds
with respect to such date to the following Persons in the order of priority
listed below:
(a) if a Spread Account Funding Period is in effect, an amount
equal to the Required Spread Account Amount shall be transferred to the Spread
Account; and
(b) the balance, if any, shall be delivered to the Holder of
the Exchangeable Seller Certificate.
SECTION 2.3 Interest Rate; Payment Dates. Class C Monthly
Interest, Class C Deficiency Amounts, and Class C Monthly Principal shall be
calculated and payable as provided in the Supplement.
SECTION 2.4 Payments. All payments to be made on behalf of the
Trust hereunder, whether on account of principal, interest, or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 2:30 p.m., New
York City time, on the due date
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thereof, to each Class C Holder in accordance with the terms of the Pooling and
Servicing Agreement and the Supplement.
SECTION 2.5 Spread Account. (a) The Servicer, for the benefit
of the Class C Holders, shall establish and maintain or cause to be established
and maintained, a spread account (the "Spread Account") for the sole and
exclusive benefit of the Class C Holders and, after payment in full of the Class
C Investor Interest, the Holder of the Exchangeable Seller Certificate. The
Spread Account shall be established and maintained with the Trustee, bearing a
designation clearly indicating that the funds deposited therein are held
exclusively for the benefit of the Class C Holders and, after payment in full of
the Class C Investor Interest, the Holder of the Exchangeable Seller
Certificate.
The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Spread Account and in all proceeds
thereof for the benefit of the Class C Holders and upon payment in full of the
Class C Investor Interest, the Holder of the Exchangeable Seller Certificate.
The Spread Account shall be under the sole dominion and control of the Trustee
for the benefit of the Class C Holders and upon payment in full of the Class C
Investor Interest, the Holder of the Exchangeable Seller Certificate. If, at any
time, the Spread Account ceases to be established and maintained with the
Trustee, the Trustee (or the Servicer on its behalf) shall on or before the next
Distribution Date (or if such Distribution Date is not more than five Business
Days from such date, the following Distribution Date) establish a new deposit
account for the Spread Account which shall be established and maintained with a
Qualified Depository Institution and shall transfer any cash and/or any
investments to such new deposit account and from the date such new account is
established, it shall be the Spread Account. The Trustee at the written
direction of the Servicer (or the Servicer on the Trustee's behalf) shall make
withdrawals from the Spread Account from time to time for the purposes set forth
in this Section 2.5. Funds on deposit in the Spread Account shall be invested at
the written direction of the Servicer by the Trustee in Permitted Investments.
All such investments shall be held by the Trustee for the benefit of the Class C
Holders (and upon payment in full of the Class C Investor Interest, the Holder
of the Exchangeable Seller Certificate); provided that on each Distribution
Date, the Trustee shall (upon the written instruction of the Servicer) apply all
interest and other investment earnings (net of losses and investment expenses)
as Available Funds, to the extent such interest and earnings together with other
funds in the Spread Account exceed the Required Spread Account Amount). Funds on
deposit in the Spread Account shall be invested in Permitted Investments having
maturities such that such funds will be available not later than the succeeding
Distribution Date.
(b) If, on any Distribution Date, the Class C Required Amount
is greater than the amount available for payment thereof pursuant to Section
4.9(c) and 4.11 of Article IV under Section 7 of the Supplement, then the
Servicer shall direct the Trustee to withdraw the amount of such deficiency, up
to the amount available in the Spread Account, from the Spread Account and apply
such amount in the order of priority and in the manner set forth in such
Sections 4.9(c) and 4.11.
(c) If on any Distribution Date, after giving effect to all
withdrawals from and deposits to the Spread Account, the amount on deposit in
the Spread Account would exceed the Required Spread Account Amount, then such
excess shall be distributed on such date to the
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Holder of the Exchangeable Seller Certificate. On the date on which the Class C
Investor Interest has been reduced to zero, the Servicer shall direct the
Trustee to distribute all amounts then remaining in the Spread Account to the
Holder of the Exchangeable Seller Certificate.
SECTION 2.6 Nonrecourse Obligation. Notwithstanding any
provision in any other Section of this Agreement to the contrary, the obligation
to pay any amounts set forth herein shall be without recourse to (i) the Seller,
the Servicer, the Trustee, any Certificateholder, any Certificate Owner, any
Receivables Purchaser or any Purchaser Representative or (ii) any affiliate,
officer, director, employee or agent of any Person described in clause (i), and
the obligation to pay such amounts hereunder shall be limited solely to the
application of funds, expressly described as available for that purpose in the
Pooling and Servicing Agreement and the Supplement as available for that
purpose, and withdrawals from the Spread Account as described in Section 2.5.
ARTICLE III
Conditions Precedent
Sections 3.1 through 3.4 constitute conditions precedent to
the obligation of the Third Party Investors to purchase interests in the Class C
Certificates from the Initial Class C Holder on the Investor Purchase Date.
SECTION 3.1 Related Agreements. Each Third Party Investor
shall have received copies of each of the Purchase Agreement, the Pooling and
Servicing Agreement, the Security Agreement, the Supplement and this Agreement,
duly executed by the parties thereto.
SECTION 3.2 Certificate Issuance. On the Investor Purchase
Date (i) all Series 2002-1 Certificates shall have been duly executed and
authenticated and delivered in accordance with Section 6.2 of the Pooling and
Servicing Agreement and (ii) a Class C Certificate shall have been delivered to
each Third Party Investor in accordance with the terms hereof.
SECTION 3.3 Spread Account. On the Investor Purchase Date,
each Third Party Investor shall have received from the Trustee satisfactory
evidence of the establishment of the Spread Account.
ARTICLE IV
Covenants of the Seller and Servicer
Each of the Seller and Servicer (and each Successor Servicer)
covenants and agrees that, until the Class C Investor Interest is reduced to
zero, unless the Required Class C Holders shall otherwise consent in writing,
each of the Seller and Servicer (and each Successor Servicer) will:
SECTION 4.1 Certificates. Furnish to the Class C Holders a
copy of each certificate, report, statement, notice or other communication
furnished by or on behalf of the Seller or the Servicer to the Trustee or to the
Rating Agencies concurrently therewith and furnish to the Class C Holders
promptly after receipt thereof a copy of each notice, demand or other
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communication received by or on behalf of Seller or Servicer with respect to the
Series 2002-1 Certificates, this Agreement, the Pooling and Servicing Agreement
or the Supplement.
SECTION 4.2 Monthly Status Reports. Furnish to each Class C
Holder (or cause to be furnished to each Class C Holder), on each Distribution
Date information relating to distributions of Available Funds, amounts on
deposit in the Spread Account in a certificate substantially in the form of
Exhibit A hereto, and such other information with respect to the Trust's
property as the Required Class C Holders may reasonably request (including a
copy of the monthly statements with respect to each of the Spread Account
furnished by the Trustee) .
SECTION 4.3 Servicer Default. Furnish to each Class C Holder,
promptly after the occurrence of any Servicer Default, a certificate of an
appropriate officer of the Servicer setting forth the circumstances of such
Servicer Default and any action taken or proposed to be taken by the Servicer
with respect thereto.
SECTION 4.4 Rule 144A Information. The Seller will promptly
furnish or cause to be furnished to any Class C Holder and upon request of any
Class C Holder, to any prospective purchaser of any Class C Certificate, copies
of the information required to be delivered to Class C Holders and any
prospective purchasers pursuant to Rule 144A(d)(4) under the Act (or any
successor provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Class C Certificates. The Seller
shall pay the expenses of printing and distributing all such documents.
SECTION 4.5 Funding Periods. Furnish to each Class C Holder,
promptly after the commencement of any Spread Account Funding Period, a
certificate of an appropriate officer of the Seller setting forth the
circumstances giving rise to such Spread Account Funding Period, and the
actions, if any, taken or proposed to be taken by the Seller or other applicable
Person with respect thereto.
ARTICLE V
Representations, Warranties and Covenants of the Third Party
Investors and the Trustee
SECTION 5.1 Representations, Warranties and Covenants of the
Third Party Investors. (a) On the Investor Purchase Date, each Third Party
Investor represents and warrants (and each subsequent Class C Holder shall be
deemed to represent and warrant as of the date that its acquisition of any Class
C Certificate becomes effective) that:
(i) it is a "qualified institutional buyer" as that
term is defined under Rule 144A of the Act and it is not
purchasing the Class C Certificate with a view to making a
distribution thereof (within the meaning of the Securities
Act);
(ii) either (i) it is not acquiring such Class C
Certificate with the assets of an "employee benefit plan"
whether or not subject to ERISA or any "plan" described in
Section 4975(e)(1) of the Code or any entity deemed to hold
"plan assets" of any of the foregoing by reason of an
employee benefit plan's or other plan's investment in such
entity (each, a "Benefit Plan Investor") or (ii) it is an
insurance company purchasing the Class C Certificate with
assets of its general
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account, and at the time of acquisition and throughout the
period of holding, (a) it meets all of the requirements of
and is eligible for exemptive relief under Prohibited
Transaction Class Exemption 95-60; (b) less than 25% of the
assets of that general account are assets of a Benefit Plan
Investor; and (c) it is not a servicer to the Trust or an
affiliate of a servicer to the Trust, and would not
otherwise be excluded under 29 CFR Section 2510.3-101(f)(1);
(iii) no registration with consent or approval of or
other action by any federal, state or other governmental
authority or regulatory body having jurisdiction over it is
required in connection with the execution, delivery or
performance by it of this Agreement and
(iv) such Class C Holder is 1 Private Holder.
(b) Each Class C Holder covenants and agrees to maintain as
confidential and not disclose to any Person (other than any officer, employee,
agent, counsel, advisor or representative of a party hereto) all information
relating to the Trust, the Seller or the Servicer which it obtained in
connection with the transactions contemplated hereby, except as the Trustee, the
Seller or the Servicer may have consented to in writing prior to any proposed
disclosure or except as it may have been advised by counsel is (i) required by
law, including, without limitation, any securities or banking laws, rules,
orders or regulations or (ii) reasonably necessary or desirable in connection
with any lawsuit or governmental investigation or proceeding.
SECTION 5.2 Representations, Warranties and Covenants of the
Trustee. As of the date hereof, the Trustee represents, warrants and covenants
to the Initial Class C Holder, and as of the Investor Purchase Date, the Trustee
represents, warrants and covenants to each Third Party Investor that:
(a) The Trustee is a national banking association duly
authorized to engage in the business of banking under the laws of the United
States of America;
(b) The Trustee has full power and authority to deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement; and
(c) This Agreement has been duly executed and delivered by the
Trustee and constitutes its legal, valid and binding obligation in accordance
with its terms.
ARTICLE VI
Miscellaneous
SECTION 6.1 Amendments and Waivers. This Agreement and the
Supplement shall not be amended or modified without the written consent of the
Seller, the Trustee, the Servicer and the Class C Holders. No waiver of, or
consent to the departure from, any provision of this Agreement or the Supplement
by any party hereto shall be effective without the written consent of the
Seller, the Servicer, the Trustee, and the Required Class C Holders; provided,
however, that no amendment reducing the amount or delaying any payment to be
made to the
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Class C Holders hereunder shall be effective without the written consent of all
Class C Holders. The Servicer shall provide to Xxxxx'x a copy of any amendment
prior to the effectiveness thereof. Notwithstanding anything contained herein to
the contrary, the Seller and the Initial Class C Holder may amend this Agreement
without the consent of any party if such amendment (a) is in connection with the
Initial Class C Holder's sale of an interest in the Class C Certificates to any
Third Party Investors on the Investor Purchase Date and (b) is with respect to
the definition of (i) the Class C Certificate Rate, and does not exceed the rate
specified in the proviso to the initial definition of such rate, (ii) the
Required Spread Account Amount or (iii) the Spread Account Funding Period.
SECTION 6.2 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICTS OF LAW PROVISIONS.
SECTION 6.3 No Waiver. Neither any failure nor any delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise or the exercise of any other
right, power or privilege.
SECTION 6.4 Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 6.5 Termination. This Agreement shall remain in full
force and effect until the earlier of (i) the payment in full of the Class C
Investor Interest and (ii) the Series 2002-1 Termination Date.
SECTION 6.6 Transfer Restrictions. (a) No Class C Certificate
may be offered, sold or otherwise transferred to any Person (other than the
Seller) unless the Seller shall have given its prior written approval to such
offer, sale or transfer (which approval shall not be unreasonably withheld).
Each Class C Holder further agrees that it will not make any general
solicitation or general advertising for the offer or sale of its Class C
Certificate and will not transfer its Class C Certificate (or any portion
thereof) to any Person except to a U.S. Person (as defined in Section
7701(a)(30) of the Code) within the United States which such Class C Holder
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Act) that is purchasing (1) for its own account or (2) for the
account of a "qualified institutional buyer" (as so defined), and, in such case,
unless such Person shall have delivered to such Class C Holder a purchaser
representation letter substantially in the form attached hereto as Exhibit B.
Each Class C Holder further agrees to provide to any Person purchasing a Class C
Certificate (or any portion thereof) from it a notice advising such purchaser
that resales of the Class C Certificates are restricted as stated above.
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(b) Seller shall not execute, and (if given prior written
notice by the Servicer of the inability of the Seller to execute any Subject
Instrument by operation of this clause (b)) the Transfer Agent and Registrar
shall not register the transfer of, any Class C Certificate unless (i) after
giving effect to the execution or transfer of such Class C Certificate, there
would be no more than 10 Private Holders of Class C Certificates and (ii) the
other conditions to transfer set forth in Section 6.3 of the Pooling Agreement
have been satisfied.
(c) Any Class C Holder that intends to offer, sell or
otherwise transfer its Class C Certificate to a Person other than the Seller or
any of its Affiliates (any such offering, sale or transfer being herein called a
"Proposed Transfer") shall give the Seller not less than five days prior written
notice of the Proposed Transfer. Such notice shall include the proposed date of
transfer, the compensation for such transfer, the Person or Persons to which
such transfer will be made, and all other material terms of the Proposed
Transfer.
SECTION 6.7 Notices.
(a) All notices and other communications provided for
hereunder shall be in writing (including telecopy) and, if to the Seller, the
Servicer or the Trustee either mailed, telecopied, couriered or delivered to it,
addressed to it at its address set forth in the Pooling and Servicing Agreement,
or if to a Class C Holder, in accordance with the terms of the Pooling and
Servicing Agreement. All such notices and other communications shall, when
mailed, be effective on the first Business Day after the date of receipt,
addressed as aforesaid. Any party hereto may change the address or telecopier
number to which notices to it are to be sent by notice given to the other
parties hereto.
(b) Any notice or written direction given by a Class C Holder
to the Trustee hereunder may conclusively be relied upon by the Trustee, absent
manifest error.
SECTION 6.8 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
SECTION 6.9 Exclusive Benefit. The rights and remedies of the
Class C Holders specified herein are for the sole and exclusive benefit, use and
protection of the Class C Holders, and the Class C Holders are entitled, but
shall have no duty or obligation to the Seller, the Servicer, the Trustee, the
other Certificateholders or otherwise, to exercise or to refrain from exercising
any right or remedy reserved to the Class C Holders hereunder or cause the
Trustee or any other party to exercise or to refrain from exercising any right
or remedy available to it.
SECTION 6.10 Limitation of Remedies. No Class C Holder shall
have the right to cause the Class C Investor Interest or any portion thereof to
become due and payable prior to any Distribution Date or other date on which
amounts are payable hereunder to such Class C Holder other than as expressly set
forth in the Supplement and shall not attempt to exercise any of its rights
hereunder with respect to Available Funds or amounts on deposit in either of the
Spread Account prior to such due date or Distribution Date.
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SECTION 6.11 Counterparts. This Agreement may be executed in
any number of counterparts, and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument.
SECTION 6.12 Entire Agreement. This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 6.13 Headings. Article, Section and subsection
headings and the Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of,
or to be taken into consideration in interpreting, this Agreement.
SECTION 6.14 Nonpetition Agreement. Notwithstanding any prior
termination of this Agreement, no Class C Holder shall, prior to the date which
is one year and one day after the final payment of the Certificates, acquiesce,
petition or otherwise invoke or cause the Trust or the Seller to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Trust or the Seller under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Seller or any substantial part of its property or ordering the
winding up or liquidation of the affairs of the Trust or the Seller.
SECTION 6.15 Waiver of Jury Trial. EACH OF, THE SELLER, THE
SERVICER, THE TRUSTEE, AND EACH CLASS C HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT, THE CLASS C CERTIFICATES OR ANY OTHER DOCUMENTS AND
INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE SELLER, THE
SERVICER, THE TRUSTEE, OR ANY CLASS C HOLDER.
11
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
SPIRIT OF AMERICA, INC., as Servicer
By:________________________________
Name:
Title:
CHARMING SHOPPES RECEIVABLES
CORP., as Seller and Initial Class C Holder
By:________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By:________________________________
Name:
Title:
S-1
SCHEDULE I
Initial Class C Holder
Name of Initial Class C Holder Principal Amount of Class C Certificate
------------------------------ ---------------------------------------
Charming Shoppes Receivables Corp. $9,500,000
EXHIBIT A to Certificate Purchase Agreement
CHARMING SHOPPES MASTER TRUST SERIES 2002-1
DUE PERIOD ENDING ______________
Distribution Date: , 200_
1. Available Funds:
a. Portion of Excess Spread and Shared Excess Finance Charge
Collections to be paid from the Collection Account
pursuant to Section 4.11(j) of Article IV under Section 7
of the Supplement: $__________
b. Investment earnings on the Spread Account: $__________
Available Funds: $__________
2. Application of Available Funds: $__________
a. if a Spread Account Funding Period is in effect,
to be applied to deposit in the Spread Account the amount
required to be deposited pursuant to Section 2.2(c): $__________
b. to be paid to the Holder of the Exchangeable Seller
Certificate: $__________
3. Class C Investor Interest on the Distribution Date, after
giving effect to all distributions, reallocations and
chargeoffs to the Class C Holders on the Distribution Date:$__________
4. Spread Account:
a. Required Spread Account Amount: $___________
b. amount on deposit in the Spread Account as of the most
recently preceding Distribution Date: $___________
B-1
c. amount withdrawn from the Spread Account pursuant to
Section 2.5(b): $___________
d. amount withdrawn from the Spread Account pursuant to
Section 2.5(c): $___________
e. amount on deposit in the Spread Account after giving
effect to deposits and withdrawals set forth in c and d
above: $___________
5. Spread Account Funding Period:
a. Excess Yield Percentage this Due Period _____________%
b. Excess Yield Percentage preceding Due Period _____________%
c. [_____] month average Excess Yield Percentage: _____________%
Is the [__] month average Excess Yield Percentage
less than [__]%? _____________
Has a previous Spread Account Funding Period been cured? _____________
B-2
Exhibit B to Certificate Purchase Agreement
FORM OF REPRESENTATION LETTER
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx, XX 1249
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Charming Shoppes Receivables Corp.
c/o Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Re: Purchase of $________ principal amount of Charming Shoppes Master
Trust Series 2002-1 Asset Backed Certificates, Class C
Ladies and Gentlemen:
In connection with our purchase of the above Asset Backed Certificates (the
"Certificates") pursuant to that certain Class C Certificate Purchase Agreement,
dated as of November 22, 2002 (the "Class C CPA"), among Wachovia Bank, National
Association, as Trustee, Charming Shoppes Receivables Corp., as Seller, Spirit
of America, Inc., as Servicer and the Class C Holders described therein, we (the
"Purchaser") confirm that:
(1) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "1933 Act"), and are being
sold to us in a transaction that is exempt from the registration
requirements of the 1933 Act and of any applicable state securities
laws;
(2) any information we desire concerning the Certificates or any other
matter relevant to our decision to purchase the Certificates is or has
been made available to us;
(3) we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Certificates, and we (and any account for which we
are purchasing) are able to bear the economic risk of an investment in
the Certificates;
(4) we are a qualified institutional buyer as defined in Rule 144A
promulgated under the 1933 Act (a "QIB") that is purchasing for its
own account or for the account of a QIB and have completed one of the
forms of certification to that effect
B-1
attached hereto as Annex 1 or Annex 2 (each, a "Certification Form");
(5) we will not make any general solicitation or general advertising for
the offer or sale of our Certificate and will not transfer our
Certificates (or any portion thereof) to any Person except to a U.S.
Person (as defined in Section 7701(a)(30) of the Code) within the
United States which we reasonably believes is a QIB that is purchasing
(1) for its own account or (2) for the account of a QIB, and, in such
case, unless such Person shall have delivered to us a purchaser
representation letter substantially in the form hereof;
(6) we are either (i) not acquiring such Certificates with the assets of
an "employee benefit plan" whether or not subject to ERISA or any
"plan" described in Section 4975(e)(1) of the Code or any entity
deemed to hold "plan assets" of any of the foregoing by reason of an
employee benefit plan's or other plan's investment in such entity
(each, a "Benefit Plan Investor") or (ii) an insurance company
purchasing the Certificates with assets of our general account, and at
the time of acquisition and throughout the period of holding, (a) we
meet all of the requirements of and are eligible for exemptive relief
under Prohibited Transaction Class Exemption 95-60; (b) less than 25%
of the assets of that general account are assets of a Benefit Plan
Investor; and (c) we are not a servicer to the Trust or an affiliate
of a servicer to the Trust, and would not otherwise be excluded under
29 CFR Section 2510.3-101(f)(1);
(7) no registration with consent or approval of or other action by any
federal, state or other governmental authority or regulatory body
having jurisdiction over it is required in connection with the
execution, delivery or performance by it of the Class C CPA;
(8) we are each 1 Private Holder;
(9) we covenant and agree to maintain as confidential and not disclose to
any Person (other than any officer, employee, agent, counsel, advisor
or representative of a party hereto) all information relating to the
Trust, the Seller or the Servicer which we obtained in connection with
the transactions contemplated hereby, except as the Trustee, the
Seller or the Servicer may have consented to in writing prior to any
proposed disclosure or except as it may have been advised by counsel
is (i) required by law, including, without limitation, any securities
or banking laws, rules, orders or regulations or (ii) reasonably
necessary or desirable in connection with any lawsuit or governmental
investigation or proceeding; and
(10) we understand that the Certificates will bear a legend to
substantially the following effect:
B-2
"THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY BE SOLD ONLY PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE
ACT OR AN EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE ACT. IN
ADDITION, THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF
THE POOLING AND SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS
CERTIFICATE BY THE TRUSTEE UPON WRITTEN REQUEST.
THIS CERTIFICATE, OR AN INTEREST HEREIN, MAY NOT BE ACQUIRED BY OR FOR
THE ACCOUNT OF ANY EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3)
OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
WHETHER OR NOT SUBJECT TO ERISA, OR A PLAN THAT IS DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT (EACH, A "BENEFIT PLAN INVESTOR"), OR BY OR FOR THE
ACCOUNT OF ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE ANY BENEFIT PLAN
ASSETS BY REASON OF A BENEFIT PLAN'S INVESTMENT IN SUCH ENTITY. BY
ACQUIRING THIS CERTIFICATE OR AN INTEREST HEREIN, THE PURCHASER THEREOF
WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) IT IS NOT
A BENEFIT PLAN INVESTOR, AND THAT ITS ACQUISITION OF THIS CERTIFICATE OR AN
INTEREST HEREIN IS IN COMPLIANCE WITH THE FOREGOING RESTRICTIONS ON BENEFIT
PLAN ASSETS OR (II) IT IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE
OR INTEREST HEREIN WITH ASSETS OF ITS GENERAL ACCOUNT, AND AT THE TIME OF
ACQUISITION AND THROUGHOUT THE PERIOD OF HOLDING, (A) IT MEETS ALL OF THE
REQUIREMENTS OF AND IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, (B) LESS THAN 25% OF THE ASSETS OF SUCH
ACCOUNT ARE ASSETS OF A BENEFIT PLAN INVESTOR AND (C) IT IS NOT A SERVICER
TO THE TRUST OR AN AFFILIATE OF SUCH SERVICER, AND WOULD NOT OTHERWISE BE
EXCLUDED UNDER 29 CFR 2510.3-101(f)(1).
NEITHER THIS CERTIFICATE, NOR ANY PORTION OF THIS CERTIFICATE, MAY BE
TRANSFERRED (X) IF AFTER GIVING EFFECT TO THE EXECUTION OR TRANSFER OF SUCH
CERTIFICATE, THERE WOULD BE MORE THAN (I) 10 PRIVATE HOLDERS OF CLASS C
CERTIFICATES OR (II) 100 PRIVATE HOLDERS, OR (Y) ON OR THROUGH (I) AN
"ESTABLISHED SECURITIES MARKET" WITHIN THE MEANING OF SECTION 7704(b)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND ANY PROPOSED, TEMPORARY
OR FINAL TREASURY REGULATION
B-3
THEREUNDER, INCLUDING, WITHOUT LIMITATION, AN OVER-THE-COUNTER-MARKET OR AN
INTERDEALER QUOTATIONS SYSTEM THAT REGULARLY DISSEMINATES FIRM BUY OR SELL
QUOTATIONS OR (II) "SECONDARY MARKET" OR "SUBSTANTIAL EQUIVALENT THEREOF"
WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATION
THEREUNDER, INCLUDING A MARKET WHEREIN INTERESTS IN THE TRUST ARE REGULARLY
QUOTED BY ANY PERSON MAKING A MARKET IN SUCH INTERESTS AND A MARKET WHEREIN
ANY PERSON REGULARLY MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO
INTEREST IN THE TRUST AND STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS
AT THE QUOTED PRICES FOR ITSELF OR ON BEHALF OF OTHERS. ANY ATTEMPTED
TRANSFER, ASSIGNMENT, CONVEYANCE, PARTICIPATION OR SUBDIVISION IN
CONTRAVENTION OF THE PRECEDING RESTRICTIONS, AS REASONABLY DETERMINED BY
THE SELLER, SHALL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR, SELLER,
OR SUBDIVIDER OF SUCH CERTIFICATE SHALL BE CONSTRUED TO BE TREATED AS THE
CERTIFICATEHOLDER OF ANY SUCH CERTIFICATE FOR ALL PURPOSES OF THE POOLING
AND SERVICING AGREEMENT."]
The Seller and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Capitalized terms used but not defined herein shall have those meanings set
forth for such terms in the Class C CPA.
Very truly yours,
[Name of Purchaser]
By:
(Authorized Officer)
B-4
Annex 1 to Exhibit B
Qualified Institutional Buyer Status Under SEC Rule 144A
--------------------------------------------------------
(Buyers other than investment companies)
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx, XX 1249
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Charming Shoppes Receivables Corp.
c/o Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
[Transferring Class C Holder]
Name of Buyer: ("Buyer")
I hereby certify that as indicated below, I am the duly-authorized
President, Chief Financial Officer, Vice President or other executive officer of
Buyer.
In connection with purchases of securities by Buyer, I hereby certify to
you and, if you act as broker for one or more customers, to such customers, that
Buyer is a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) Buyer owned and/or
invested on a discretionary basis $_______(1) in securities (except for the
excluded securities referred to below) as of the end of Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
Buyer satisfies the criteria in the category marked below:
--------------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities of issuers that are not affiliated with the Buyer,
unless Buyer is a dealer, and, in that case, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities of issuers that are not
affiliated with the Buyer.
B-5
[ ] Corporation, etc. Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code.
[ ] Bank. Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached
hereto.
[ ] Savings and Loan. Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institution or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is attached
hereto.
[ ] Broker-dealer. Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
[ ] Insurance Company. Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of Columbia.
[ ] State or Local Plan. Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of
a State or its political subdivisions, for the benefit of its
employees.
[ ] Investment Advisor. Buyer is an investment advisor registered under
the Investment Advisers Act of 1940.
The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with Buyer, (ii) securities that are part of an
unsold allotment to or subscription by Buyer (if Buyer is a dealer), (iii)
securities issued or guaranteed by the U.S. or any instrumentality thereof, (iv)
bank deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement, and (viii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis, Buyer used the cost of such securities to
Buyer and did not include any of the securities referred to in the preceding
paragraph.
B-6
Further, in determining such aggregate amount, Buyer may have included
securities owned by subsidiaries of Buyer, but only if such subsidiaries are
consolidated with Buyer in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under Buyer's direction. However, such securities were
not included if Buyer is a majority-owned, consolidated subsidiary of another
enterprise and Buyer is not itself a reporting company under the Securities
Exchange Act of 1934.
[Buyer acknowledges that it is familiar with Rule 144A and understands that
you and your customers (if you act as a broker for one or more customers) are
and will continue to rely on the statements made herein because one or more
sales by you for your own account of your customer's account to Buyer may be in
reliance on Rule 144A.
Will Buyer be purchasing Rule 144A securities only for Buyer's own account?
___ ___
Yes No
If the answer to this question is "no", Buyer agrees that, in connection with
any purchase of securities sold to Buyer for the account of a third party
(including any separate account) in reliance on Rule 144A, Buyer will only
purchase for the account of a third party that at the time is a "qualified
institutional buyer" within the meaning of Rule 144A. In addition, Buyer agrees
that Buyer will not purchase securities for a third party unless Buyer has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.](2)
Buyer agrees to notify you of any changes in the information and
conclusions herein. Until such notice is given to you, Buyer's purchase of
securities from you, or through you from your customers, will constitute a
reaffirmation of the foregoing certifications and acknowledgments as of the date
of such purchase.
Further, if Buyer is a bank or savings and loan as provided above, Buyer
agrees that it will furnish you with updated annual financial statements
promptly after they become available.
Date:______________________
Very truly yours,
[Print Name of Buyer]
By:
Name:
Title:
----------------------
(2) Bracketed language to be included only in Certification Forms from
Buyers in connection with re-sales pursuant to Rule 144A.
B-7
Annex 2 to Exhibit B
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx, XX 1249
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Corporate Trust Administration
Charming Shoppes Receivables Corp.
c/o Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Name of Buyer: ("Buyer")
Name of Investment Adviser: ("Adviser")
I hereby certify that, as indicated below, I am the duly-authorized
President, Chief Financial Officer or Vice President of Buyer or, if Buyer is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), of Adviser.
In connection with purchases of securities by Buyer, I hereby certify
to you and, if you act as broker for one or more customers, to such customers,
that Buyer is a "qualified institutional buyer" as defined in Rule 144A because
(i) Buyer is an investment company registered under the Investment Company Act
of 1940 and (ii) as marked below, Buyer alone, or Buyer's Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of Buyer's most recent fiscal year.
______ Buyer owned $________ in securities (other than the excluded
securities referred to below) as of the end of Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
______ Buyer is part of a Family of Investment Companies which owned in the
aggregate $_____ in securities (other than the excluded securities
referred to below) as of the end of Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
For purposes of determining the amount of securities owned by Buyer or Buyer's
Family of Investment Companies, I used the cost of such securities.
B-9
The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with Buyer or are part of Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
[On behalf of Buyer, I acknowledge that Buyer is familiar with Rule
144A and understands that you and your customers (if you act as a broker for one
or more customers) are and will continue to rely on the statements made herein
because one or more sales to Buyer by you for your own account or your
customer's account will be in reliance on Rule 144A. In addition, on behalf of
Buyer, I agree that, in connection with any purchase of securities sold by or
through you in reliance on Rule 144A, Buyer will only purchase for Buyer's own
account.](1)
------------------------
(1) Bracketed language to be included only in Certification Forms from
Buyers in connection with re-sales pursuant to Rule 144A.
B-10
Finally, on behalf of Buyer or Adviser (as appropriate), I also agree
to notify you of any changes in the information and conclusions herein. Until
such notice is given to you, Buyer's purchase of securities from you, or through
you from your customers, will constitute a reaffirmation of the foregoing
certifications and acknowledgments as of the date of such purchase.
Date:
Very truly yours,
Name:
Title:
On behalf of:
[Name of Buyer/Adviser]
B-11
