EXHIBIT 10.1.17
CERTIFICATE PURCHASE AGREEMENT
among
CHARMING SHOPPES RECEIVABLES CORP.
as Seller and as the Class B Purchaser,
SPIRIT OF AMERICA, INC.
as Servicer,
MONTE ROSA CAPITAL CORPORATION,
as the Conduit Purchaser,
and
ING BARING (U.S.) CAPITAL MARKETS LLC
as Administrator for the Conduit Purchaser.
dated as of November 9, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms 1
SECTION 1.02 Other Definitional Provisions 6
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Class A Certificates 7
SECTION 2.02 Class A Incremental Fundings 7
SECTION 2.03 Class B Incremental Fundings 9
SECTION 2.04 Reduction or Increase of Maximum Funded
Amounts 9
SECTION 2.05 Calculation of the Certificate Rates 10
ARTICLE III
CLOSING
SECTION 3.01 Closing 11
SECTION 3.02 Transactions to be Effected at the Closing 11
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE ON THE CLOSING DATE
SECTION 4.01 Performance by the Seller and Servicer 11
SECTION 4.02 Representations and Warranties 11
SECTION 4.03 Corporate Documents 11
SECTION 4.04 [reserved] 11
SECTION 4.05 Opinions of Counsel to the Trustee 11
SECTION 4.06 Financing Statements 11
SECTION 4.07 Ratings 12
SECTION 4.08 Documents 12
SECTION 4.09 No Actions or Proceedings 12
SECTION 4.10 Approvals and Consents 12
SECTION 4.11 Officer's Certificate 12
SECTION 4.12 Other Documents 12
SECTION 4.13 Fees 12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER AND SERVICER
SECTION 5.01 Representations and Warranties of the Seller 13
SECTION 5.02 Representations and Warranties of the
Servicer 14
ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
SECTION 6.01 Organization 16
SECTION 6.02 Authority, etc 16
SECTION 6.03 Securities Act 16
SECTION 6.04 Investment Company Act 16
ARTICLE VII
COVENANTS OF THE SELLER AND THE SERVICER
SECTION 7.01 Rating of Class A Certificates or Notes 17
SECTION 7.02 Information 17
SECTION 7.03 Access to Information 18
SECTION 7.04 Security Interests; Further Assurances 18
SECTION 7.05 Covenants 18
SECTION 7.06 Amendments 18
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing 19
SECTION 8.02 Transfer Restrictions 19
SECTION 8.03 Consents, etc 19
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification by the Seller 19
SECTION 9.02 Procedure 20
SECTION 9.03 Defense of Claims 20
SECTION 9.04 Increased Cost and Reduced Return 21
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments 23
SECTION 10.02 Notices 23
SECTION 10.03 No Waiver; Remedies 23
SECTION 10.04 Binding Effect; Assignability 23
SECTION 10.05 Provision of Documents and Information 23
SECTION 10.06 GOVERNING LAW; JURISDICTION; WAIVER OF JURY
TRIAL 24
SECTION 10.07 No Proceedings 24
SECTION 10.08 Execution in Counterparts 24
SECTION 10.09 No Recourse 24
SECTION 10.10 Survival 25
SECTION 10.11 Tax Characterization 25
EXHIBIT A Form of Notice of Incremental Funding
EXHIBIT B Form of Investment Letter
SCHEDULE I Addresses for Notices
This CERTIFICATE PURCHASE AGREEMENT (this "Agreement") dated
as of November 9, 2000, is among CHARMING SHOPPES RECEIVABLES
CORP., a Delaware corporation as seller, (in such capacity, the
"Seller") and as Class B Purchaser, (in such capacity, the "Class
B Purchaser"), SPIRIT OF AMERICA, INC., a Delaware corporation
(the "Servicer"), MONTE ROSA CAPITAL CORPORATION, a Delaware
corporation (the "Conduit Purchaser") and ING BARING (U.S.)
CAPITAL MARKETS LLC, a Delaware limited liability company ("ING
Baring"), as administrator for the Conduit Purchaser (in such
capacity, the "Administrator").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. Capitalized terms used
herein without definition shall have the meanings set forth in
the Pooling and Servicing Agreement (as defined below) or the
Supplement (as defined below), as applicable. If a term used
herein is defined both in the Pooling and Servicing Agreement and
the Supplement, it shall have the meaning set forth in the
Supplement. Additionally, the following terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended.
"Administrator" is defined in the preamble.
"Agreement" is defined in the preamble.
"Applicable Margin" is defined in the Fee Letter.
"Bank Rate" means, for any day falling in any Interest
Period, an interest rate per annum equal to the Eurodollar Rate
for that Interest Period plus the Applicable Margin, except that
the Bank Rate shall equal the Base Rate plus the Applicable
Margin (i) as to any Interest Period (or portion thereof) if the
Administrator does not receive notice or determine, by no later
than 12:00 noon (New York City time) on the third Business Day
prior to the first day of such Interest Period (or, the first day
of funding under the Liquidity Agreement), that such portion will
be funded under the Liquidity Agreement, (ii) as to any Interest
Period (or portion thereof), if the Administrator has determined
that for any reason it is not legally permissible or commercially
practicable for any Liquidity Purchaser to fund its investment in
the Class A Certificates by purchasing dollar deposits in the
London interbank market, (iii) as to any Interest Period (or
portion thereof) to the extent that the portion of the Class A
Funded Amount to be funded at the Bank Rate for such Interest
Period (or portion thereof) is less than $1,000,000, or (iv) if
elected by the Seller by notice delivered to the Administrator no
later than 12:00 noon (New York City time) on the third Business
Day prior to the first day of such Interest Period.
"Base Rate" means the per annum rate equal to the higher of
(a) the rate of interest from time to time announced by The Chase
Manhattan Bank at its principal office located in New York, New
York, as its prime commercial lending rate and (b) the sum of (i)
the Federal Funds Rate and (ii) 0.50%.
"Class A Additional Amounts" means all amounts owed by the
Seller pursuant to Article IX hereof plus any Breakage Payments
owed to any Purchasers pursuant to Section 4.6(c) of the
Supplement.
"Class A Certificates" means the Class A Floating Rate Asset
Backed Certificates, Series 2000-VFC in the maximum aggregate
principal amount of $50,000,000 to be issued by the Trust
pursuant to the Pooling and Servicing Agreement and the
Supplement, evidencing undivided beneficial interests in certain
assets of the Trust.
"Conduit Purchaser" is defined in the preamble.
"Class B Certificate Rate" means, for each Interest Period,
a per annum rate equal to 0.25% per annum in excess of the
Eurodollar Rate for such Interest Period.
"Class B Purchaser" is defined in the preamble.
"Closing" is defined in Section 3.01.
"Closing Date" is defined in Section 3.01.
"Cost of Funds" means for any Interest Period, the sum, for
each day falling in such period, of an amount equal to the
product of (i) the Class A Investor Interest on such day times
(ii) the Daily Conduit Purchaser Rate.
"Commercial Paper" means the commercial paper promissory
notes issued by the Conduit Purchaser in the commercial paper
market.
"CP Rate" means, for any day falling in any Interest Period,
a rate per annum calculated by the Administrator equal to the sum
of (a) the rate or, if more than one rate, the weighted average
of the rates, determined by converting to an interest-bearing
equivalent rate per annum the discount rate (or rates) at which
Commercial Paper on such day during such Interest Period has been
sold by the commercial paper placement agents selected by
Administrator and allocated to the Class A Investor Interest
(taking into consideration any incremental carrying costs
associated with such Commercial Paper maturing other than on
dates when the Conduit Purchaser receives funds), plus (b) to the
extent not included in (a), the commissions and charges charged
by such commercial paper placement agents with respect to such
Commercial Paper, expressed as a percentage of such face amount
and converted to an interest-bearing equivalent rate per annum
plus (c) certain documentation and transaction costs in respect
of such Commercial Paper plus (d) the cost of borrowings to fund
small or odd dollar amounts that are not easily accommodated in
the commercial paper market.
"Daily Conduit Purchaser Rate" means:
(a) as to any day on which the Conduit Purchaser funds the
entire Class A Investor Interest with Commercial Paper, the CP
Rate plus the Applicable Margin divided by 360; and
(b) as to any day on which the Conduit Purchaser funds all or
part of the Class A Investor Interest other than through the
issuance of Commercial Paper, the weighted average of (x) the CP
Rate plus the Applicable Margin divided by 360 (weighted on the
basis of the portion of the Class A Investor Interest that was
funded with Commercial Paper) and (y) the Bank Rate, divided by
(i) 360 (to the extent that the Bank Rate is determined by
reference to the Eurodollar Rate) and (ii) 365 or 366, as
applicable (to the extent that the Bank Rate is determined by
reference to the Base Rate) (weighted, in each case, on the basis
of the portion of the Class A Investor Interest that was funded
at such Bank Rate).
"Eurodollar Business Day" means a day on which dealings in
Dollars are carried on in the eurodollar interbank market.
"Eurodollar Determination Date" means the second Eurodollar
Business Day prior to the commencement of each Interest Period.
"Eurodollar Rate" means, for any day falling in any Interest
Period, the per annum rate of interest determined by the
Administrator to be equal to the rate (rounded upwards, if
necessary, to the nearest whole multiple of 1/100th of one
percent per annum) for deposits in Dollars for a period
approximating such Interest Period (or portion thereof wherein
interest shall be calculated at the Eurodollar Rate) which
appears on the Reuters Screen LIBO Page as of 11:00 A.M. (London
time) on the second Eurodollar Business Day before (and for value
on) the first day of such Interest Period (or the first day of
the portion thereof wherein interest shall be calculated at the
Eurodollar Rate) and if such rate shall not be so quoted, the
rate per annum at which the Administrator is offered for such
Dollar deposits at or about 11:00 a.m., New York City time, on
such date by prime banks in the interbank eurodollar market where
the eurodollar and foreign currency exchange operations in
respect of the Incremental Fundings are then being conducted,
divided by the remainder of one minus the Eurodollar Reserve
Percentage (expressed as a decimal) applicable during such
Interest Period.
"Eurodollar Reserve Percentage" means, with respect to any
Interest Period, the then applicable percentage (expressed as a
decimal) prescribed by the Federal Reserve Board for determining
reserve requirements applicable to "Eurocurrency Liabilities"
pursuant to Regulation D.
"Federal Bankruptcy Code" means the bankruptcy code of the
United States of America codified in Title 11 of the United
States Code.
"Federal Funds Rate" means, for any day, an interest rate
per annum equal to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Boston; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Administrator from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means the Fee Letter, dated as of the Closing
Date, among the Seller and the Administrator setting forth
certain fees payable by the Seller in connection with the
purchase of the Class A Certificates by the Agent for the benefit
of the Conduit Purchaser.
"Foreign" means, with respect to any Funding Source that is
an assignee or participant of the Conduit Purchaser hereunder,
any Person not organized under the laws of the United States, one
of the states thereof, or the District of Columbia.
"Funding Agreement" means any agreement or instrument
executed by any Funding Source with or for the benefit of the
Conduit Purchaser.
"Funding Source" means any insurance company, bank or other
financial institution providing liquidity, credit enhancement or
back-up purchase support or facilities to the Conduit Purchaser
in respect of commercial paper issued by the Conduit Purchaser.
"Governmental Actions" means any and all consents,
approvals, permits, orders, authorizations, waivers, exceptions,
variances, exemptions or licenses of, or registrations,
declarations or filings with, any Governmental Authority required
under any Requirement of Law.
"Governmental Authority" means the United States of
America, any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and
having jurisdiction over the applicable Person.
"Incremental Funding" means an increase in the aggregate
outstanding principal balance of the Class A Certificates in
accordance with the provisions of Section 2.02 or an increase in
the aggregate outstanding principal balance of the Class B
Certificates in accordance with the provisions of Section 2.03.
"Incremental Funding Date" means each date on which an
Incremental Funding occurs.
"Indemnified Party" means each Purchaser, the Administrator,
each of the Funding Sources and any of their respective officers,
directors, employees, agents, representatives, assignees or
affiliates.
"Investment Letter" is defined in Section 6.03.
"Liquidity Agreement" means that certain Revolving Asset
Purchase Agreement, dated as of November 9, 2000, among Monte
Rosa Capital Corporation, ING Baring as Liquidity Agent and as
Administrator and each of the Liquidity Purchasers, as amended
from time to time.
"Liquidity Purchaser" means each Person that may from time
to time be party to the Liquidity Agreement as a "purchaser"
thereunder.
"Losses" is defined in Section 9.01.
"Notice of Incremental Funding" means a written notice of an
Incremental Funding in the form of Exhibit A.
"Pooling and Servicing Agreement" means the Second Amended
and Restated Pooling and Servicing Agreement dated as of November
25, 1997 and amended as of July 22, 1999 among the Seller, the
Servicer, and First Union National Bank, as Trustee, as the same
may be further amended, modified or supplemented.
"Purchase Expiration Date" means the earlier of (i) the date
which is 364 days from the date of this Agreement (or such later
date as the Conduit Purchaser shall agree, provided that such
date occurs on or before the then scheduled expiration of the
commitments of the Liquidity Purchasers under the Liquidity
Agreement; it being understood that the Administrator shall
provide the rating agencies rating its Commercial Paper with at
least five Business Days prior written notice of any extension of
the Purchase Expiration Date) and (ii) the commencement of the
Amortization Period.
"Purchasers" mean the Conduit Purchaser and the Class B
Purchaser.
"Regulation D" means Regulation D of the Federal Reserve
Board, or any other regulation of the Federal Reserve Board that
prescribes reserve requirements applicable to nonpersonal time
deposits or "Eurocurrency Liabilities" as presently defined in
Regulation D, as in effect from time to time.
"Regulatory Change" means, relative to any Funding Source
(a) any change in (or the adoption, implementation, change in
phase-in or commencement of effectiveness of) any
(i) United States federal or state law or foreign law applicable
to such Funding Source;
(ii) regulation, interpretation, directive, requirement or
request (whether or not having the force of law) applicable to
such Funding Source of (A) any court, government authority
charged with the interpretation or administration of any law
referred to in clause (a)(i) or of (B) any fiscal, monetary or
other authority having jurisdiction over such Funding Source; or
(iii) generally accepted accounting principles or regulatory
accounting principles applicable to such Funding Source and
affecting the application to such Funding Source of any law,
regulation, interpretation, directive, requirement or request
referred to in clause (a)(i) or (a)(ii) above; or
(b) any change in the application to such Funding Source of any
existing law, regulation, interpretation, directive, requirement,
request or accounting principles referred to in clause (a)(i),
(a)(ii) or (a)(iii) above.
"Securitization Entity" is defined in Section 10.09.
"Seller" is defined in the preamble.
"Series Documents" means the Pooling and Servicing
Agreement, the Supplement and this Agreement.
"Servicer" is defined in the preamble.
"Supplement" means the Series 2000-VFC Supplement dated as
of November 9, 2000, among the Seller, the Servicer, and First
Union National Bank, as Trustee, supplementing the Pooling and
Servicing Agreement and relating to the Series 2000-VFC
Certificates, as the same may be amended, modified or
supplemented.
"Taxes" means, in the case of any Funding Source that is an
assignee or participant of the Conduit Purchaser, taxes, levies,
imposts, deductions, charges, withholdings and liabilities, now
or hereafter imposed, levied, collected, withheld or assessed by
any country (or any political subdivision thereof), excluding
income or franchise taxes imposed on it by (i) the jurisdiction
under the laws of which such Funding Source is organized (or by
any political subdivision thereof), (ii) any jurisdiction in
which an office of such Funding Source funding the Class A Funded
Amount is located (or any political subdivision thereof), or
(iii) any jurisdiction in which such Funding Source is already
subject to tax.
"Third Party Claim" is defined in Section 9.02.
SECTION 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not
defined in Section 1.01, and accounting terms partially defined
in Section 1.01 to the extent not defined, shall have the
respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of
such terms under generally accepted accounting principles, the
definitions contained herein shall control.
(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 and Exhibit
references contained in this Agreement are references to
Sections, subsections, the Schedule and Exhibits in or to this
Agreement unless otherwise specified.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01 Purchase and Sale of the Class A Certificates.
(a) On the terms and subject to the conditions set forth in this
Agreement, and in reliance on the covenants, representations,
warranties and agreements herein set forth, the Seller shall sell
to the Agent, for the benefit of the Conduit Purchaser and the
Liquidity Purchasers, and the Agent, for the benefit of the
Conduit Purchaser and the Liquidity Purchasers, shall purchase at
the Closing, a Class A Certificate with an initial outstanding
principal amount of zero and with a purchase limit equal to the
Maximum Class A Funded Amount.
(b) Purchase and Sale of the Class B Certificates. On the terms
and subject to the conditions set forth in this Agreement, and in
reliance on the covenants, representations, warranties and
agreements herein set forth the Seller shall sell to the Class B
Purchaser, and the Class B Purchaser shall purchase at the
Closing, a Class B Certificate with an initial outstanding
principal amount of [zero] and with a purchase limit equal to the
Maximum Class B Funded Amount.
SECTION 2.02 Class A Incremental Fundings.
(a) The Conduit Purchaser will be obligated to make Class A
Incremental Fundings from time to time during the Revolving
Period upon satisfaction, as of the applicable Incremental
Funding Date, of each of the following conditions:
(i) the Administrator shall have received copies of all monthly
statements and all reports required to be delivered by Servicer
to the Trustee pursuant to Section 3.4 of the Pooling and
Servicing Agreement;
(ii) each of the representations and warranties of the Seller and
the Servicer made in the Series Documents shall be true and
correct in all material respects as of the applicable Incremental
Funding Date immediately after giving effect to such Class A
Incremental Funding (except to the extent they expressly relate
to an earlier or later time);
(iii) the Seller and the Servicer shall be in compliance in
all material respects with all of their respective covenants
contained in the Series Documents;
(iv) both before and immediately after giving effect to such
Class A Incremental Funding, no Early Amortization Event,
Servicer Default or event which with the giving of notice or
passage of time or both could become an Early Amortization Event
or Servicer Default shall have occurred;
(v) the Class B Investor Interest shall be at least equal to the
Required Class B Amount (after giving effect to any Incremental
Fundings on such date);
(vi) no other Class A Incremental Fundings shall have occurred
during the same calendar week;
(vii) the Spread Account Amount shall be at least equal to
the Required Spread Account Amount and the Specified Enhancement
Amount shall be at least equal to the Required Enhancement
Amount, in each case after giving effect to any deposits to, and
withdrawals from, such accounts on such date and any Incremental
Funding on such date;
(viii) at least three Business Days prior to the Incremental
Funding Date, the Administrator and the Conduit Purchaser shall
have received a completed Notice of Incremental Funding;
(ix) no event shall have occurred that results in the Conduit
Purchaser being unable to access the United States commercial
paper markets and the Liquidity Purchasers not being obligated to
make a purchase under the Liquidity Agreement; and
(x) both before and immediately after giving effect to such
Class A Incremental Funding, the Seller Interest shall not be
less than the Aggregate Minimum Seller Interest; and
(xi) in the case of the initial Incremental Funding Date, prior
to such date, the Administrator, the Conduit Purchaser and the
Rating Agencies shall have received (i) fully executed
counterparts of the Cap Agreement, which is Exhibit E to the
Supplement, and the assignment of the rights of Fashion Service
Corp. under such Cap Agreement to the Trust, each in
substantially the form of the latest drafts received by the
parties as of the Closing Date, (ii) a copy of the UCC-1
financing statements executed by Fashion Service Corp. in
connection with the assignment referred to in clause (i) above,
which financing statement shall, or concurrently with such
Incremental Funding shall be, filed in the jurisdictions
necessary to perfect such assignment, (iii) opinions of Xxxxx,
Xxxxx & Xxxxx and Xxxxx Xxxxx, Executive Vice President and
General Counsel to Charming Shoppes, Inc., each in substantially
the form of the latest drafts reviewed by the parties as of the
Closing Date and (iv) the form of the Monthly Settlement Report,
which is Exhibit D to the Supplement, as agreed to by the
parties.
(b) Each Class A Incremental Funding shall be requested in an
aggregate principal amount of $100,000 (except in the case of the
initial funding, which shall be at least $500,000) and integral
multiples of $100,000 in excess thereof; provided, that a Class A
Incremental Funding may be requested in the entire remaining
Maximum Class A Funded Amount.
(c) The Conduit Purchaser shall not be required to make any
Class A Incremental Funding if, after giving effect to such
funding, the Class A Funded Amount would exceed the Maximum Class
A Funded Amount.
(d) The purchase price of each Class A Incremental Funding shall
be equal to 100% of the amount of such Class A Incremental
Funding and shall be paid not later than 3:00 p.m. New York City
time on the Incremental Funding Date by wire transfer of
immediately available funds to such account as may from time to
time be specified by the Seller in a notice to the
Administrator).
SECTION 2.03 Class B Incremental Fundings.
(a) The Class B Purchaser will be obligated to make Class B
Incremental Fundings from time to time during the Revolving
Period upon satisfaction, as of the applicable Incremental
Funding Date, of each of the following conditions:
(i) the Class B Purchaser shall have received copies of all
monthly statements and all reports required to be delivered by
Servicer to the Trustee pursuant to Section 3.4 of the Pooling
and Servicing Agreement;
(ii) each of the representations and warranties of the Seller and
the Servicer made in the Series Documents shall be true and
correct in all material respects as of the applicable Incremental
Funding Date (except to the extent they expressly relate to an
earlier or later time);
(iii) the Seller and the Servicer shall be in compliance in
all material respects with all of their respective covenants
contained in the Series Documents;
(iv) no Early Amortization Event, Servicer Default or event which
with the giving of notice or passage of time or both could become
an Early Amortization Event or Servicer Default shall have
occurred; and
(v) at least three Business Days prior to the Incremental
Funding Date, the Class B Purchaser shall have received a
completed Notice of Incremental Funding.
(b) The Class B Purchaser shall not be required to make any
Class B Incremental Funding if, after giving effect to such
funding, the Class B Investor Interest would exceed the Maximum
Class B Funded Amount.
(c) The purchase price of each Class B Incremental Funding shall
be equal to 100% of the amount of such Class B Incremental
Funding and shall be paid not later than 1:00 p.m. New York City
time on the Incremental Funding Date by wire transfer of
immediately available funds to such account as may from time to
time be specified by the Seller in a notice to the Class B
Purchaser).
SECTION 2.04 Reduction or Increase of Maximum Funded Amounts.
(a) The Seller shall not reduce in whole or in part the Maximum
Class A Funded Amount without the prior written consent of the
Administrator.
(b) The Seller may request an increase in the Class A Maximum
Funded Amount by written notice to the Administrator at least 30
days before the date on which such increase is requested to
become effective. No such increase will take effect unless (i)
the Conduit Purchaser and Administrator agree thereto and (ii)
the available commitments of the Funding Sources under the
Funding Agreements for the commercial paper program of the
Conduit Purchaser are increased as necessary to maintain the then-
current ratings of the Conduit Purchaser's Commercial Paper.
(c) The Seller may reduce in whole or in part the Maximum Class
B Funded Amount (but not below the Class B Investor Interest or
the Required Class B Amount) by giving the Class B Purchaser
written notice thereof at least two Business Days before such
reduction is to take place. The Seller shall pay the Class B
Purchaser any accrued and unpaid Class B Non-Use Fee on the first
Distribution Date following the date of such reduction with
respect to the reduction amount.
(d) The Seller may request an increase in the Maximum Class B
Funded Amount by written notice to the Class B Purchaser at
least 30 days before the date on which such increase is requested
to become effective. No such increase will take effect unless
the Class B Purchaser agrees thereto.
SECTION 2.05 Calculation of the Certificate Rates.
(a) On or before the fourth Business Day of each month, the
Administrator shall calculate the Cost of Funds, the Class A
Certificate Rate and the Class A Monthly Interest applicable to
the Class A Certificates for the Interest Period related to the
Distribution Date occurring during such Month and shall notify
the Trustee, the Seller and the Servicer of such rates and amount
(such Cost of Funds shall be calculated using an estimate of the
CP Rate, if necessary, for the remaining days in such Interest
Period; provided, however, that each such estimated amount shall
be adjusted as provided in paragraph (c) below).
(b) On or before the Business Day preceding each Distribution
Date, the Servicer shall calculate the Class B Certificate Rate
and the Class B Monthly Interest applicable to the Class B
Certificates for the Interest Period ending on such Distribution
Date and shall notify the Trustee and the Seller of such rates
and amount. On any Distribution Date on which the Class B Funded
Amount is reduced to zero and on the Series 2000-VFC Termination
Date, Class B Monthly Interest shall include amounts which accrue
from (and excluding) the last day of the preceding calendar month
through (and including) such Distribution Date.
(c) Except as provided in the next sentence, if the
Administrator shall have used an estimate of the CP Rate to
calculate the Cost of Funds pursuant to paragraph (a) with
respect to any Interest Period, following the end of such
Interest Period the Administrator shall compute the actual CP
Rate for each day during such Interest Period, and (i) if the
actual Cost of Funds computed using such actual CP Rate is
greater than the estimated Cost of Funds for such Interest
Period, the Cost of Funds for the next Interest Period shall be
increased by the amount of such difference, and (ii) if the
actual Cost of Funds so computed is less than the estimated Cost
of Funds for such Interest Period, the Cost of Funds for the next
Interest Period shall be decreased by the amount of such
difference. If (i) a Class A Incremental Funding or a Class A
Optional Amortization shall have occurred after the delivery of
the estimate of the Cost of Funds under paragraph (a) above but
before the related Distribution Date or (b) the Class A Funded
Amount shall be reduced to zero or the Series 2000-VFC
Termination Date shall occur, in either case, on the related
Distribution Date, then on or before the Business Day preceding
such Distribution Date, the Administrator shall recalculate the
Cost of Funds and the CP Rate and shall notify the Trustee, the
Seller and the Servicer of such recalculated rates and amounts
and such recalculated rates and amounts shall be deemed to
constitute such amounts and rates as required to be reported in
paragraph (a).
ARTICLE III
CLOSING
SECTION 3.01 Closing. The closing (the "Closing") of the
purchase and sale of the Class A Certificates and Class B
Certificates shall take place at the offices of Xxxxx, Xxxxx &
Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 on
November 9, 2000, or if the conditions to closing set forth in
Article IV of this Agreement shall not have been satisfied or
waived by such date, as soon as practicable after such conditions
shall have been satisfied or waived, or at such other time, date
and place as the parties shall agree upon (the date of the
Closing being referred to herein as the "Closing Date").
SECTION 3.02 Transactions to be Effected at the Closing. At
the Closing (a) the Seller shall deliver a Class A Certificate to
the Agent in consideration for the agreements of the Conduit
Purchaser hereunder and (b) the Seller shall deliver a Class B
Certificate to the Class B Purchaser in consideration for the
agreements of the Class B Purchaser hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE ON THE CLOSING DATE
The purchase of the Series 2000-VFC Certificates hereunder
is subject to the satisfaction at the time of the Closing of the
following conditions (any or all of which may be waived by the
Conduit Purchaser and the Class B Purchaser in their sole
discretion):
SECTION 4.01 Performance by the Seller and Servicer. All the
terms, covenants, agreements and conditions of the Series
Documents to be complied with and performed by the Seller and the
Servicer at or before the Closing shall have been complied with
and performed in all material respects.
SECTION 4.02 Representations and Warranties. Each of the
representations and warranties of the Seller and the Servicer
made in the Series Documents shall be true and correct in all
material respects as of the time of the Closing (except to the
extent they expressly relate to an earlier or later time).
SECTION 4.03 Corporate Documents. The Administrator shall have
received copies of the (i) certificate of incorporation, good
standing certificate and by-laws of the Seller, (ii) Board of
Directors resolutions of the Seller with respect to the Series
Documents, and (iii) incumbency certificate of the Seller, each
certified by appropriate corporate authorities.
SECTION 4.04 [reserved].
SECTION 4.05 Opinions of Counsel to the Trustee. Counsel to
the Trustee shall have delivered to the Administrator a favorable
opinion, dated as of the Closing Date and reasonably satisfactory
in form and substance to the Administrator and its counsel.
SECTION 4.06 Financing Statements. (a) The Administrator
shall have received evidence satisfactory to it of the completion
of all recordings, registrations, and filings as may be necessary
or, in the opinion of the Administrator, desirable to perfect or
evidence the assignment by the Seller to the Trust of its
ownership interest in the Receivables and the proceeds thereof
and the security interest granted pursuant to the Pooling and
Servicing Agreement, including:
(b) Acknowledgment copies of all UCC financing statements and
assignments (other than those referred to in Section 2.02(a)(xi))
that have been filed in the offices of the Secretary of State of
the applicable states and in the appropriate office or offices of
such other locations as may be specified in the opinions of
counsel delivered pursuant to Section 4.04; and
(c) Certified copies of requests for information (Form UCC-11)
(or a similar search report certified by parties acceptable to
the Administrator and their counsel) dated a date reasonably near
the Closing Date and listing all effective financing statements
which name the Seller, as seller, assignor or debtor and which
are filed in all jurisdictions in which the filings were or will
be made, together with copies of such financing statements.
SECTION 4.07 Ratings. The Conduit Purchaser's Commercial Paper
shall continue to be rated at least A-1+ by S&P and P-1 by
Moody's.
SECTION 4.08 Documents. The Administrator shall have received
a duly executed counterpart of each of the Series Documents and
each and every document or certification delivered by any party
in connection with any of such agreements (other than those
referred to in Section 2.02(a)(xi)), and each such document shall
be in full force and effect.
SECTION 4.09 No Actions or Proceedings. No action, suit,
proceeding or investigation by or before any Governmental
Authority shall have been instituted to restrain or prohibit the
consummation of, or to invalidate, the transactions contemplated
by the Series Documents and the documents related thereto in any
material respect.
SECTION 4.10 Approvals and Consents. All Governmental Actions
of all Governmental Authorities required with respect to the
transactions contemplated by the Series Documents and the other
documents related thereto shall have been obtained or made.
SECTION 4.11 Officer's Certificate. The Administrator shall
have received an Officer's Certificate from the Seller in form
and substance reasonably satisfactory to the Administrator and
its counsel, dated as of the Closing Date, certifying as to the
satisfaction of the conditions set forth in Sections 4.01 and
4.02.
SECTION 4.12 Other Documents. The Seller shall have furnished
to the Administrator such other information, certificates and
documents as the Administrator may reasonably request.
SECTION 4.13 Fees. The fees due on the Closing Date specified
in the Fee Letter shall have been paid.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER AND SERVICER
SECTION 5.01 Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Purchasers and the
Administrator as of the Closing Date as follows:
(a) Organization and Good Standing. The Seller is a corporation
duly organized and validly existing under the laws of the State
of Delaware and has full corporate power, authority and legal
right to own its properties and conduct its business as such
properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations
under this Agreement and each other Series Document to which it
is a party.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing (or is exempt from such
requirement) in any state required in order to conduct its
business, and has obtained all necessary licenses and approvals
with respect to the Seller required under applicable law.
(c) Due Authorization. The execution and delivery by the Seller
of this Agreement and each other Series Document and the
consummation of the transactions provided for hereunder and
thereunder have been duly authorized by the Seller by all
necessary corporate action on its part and this Agreement and
each other Series Document will remain, from the time of its
execution, an official record of the Seller.
(d) Enforceability. Each of this Agreement and each other
Series Document constitutes a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforceability may be limited by Debtor
Relief Laws.
(e) No Conflict. The execution and delivery of this Agreement
and each other Series Document, the performance of the
transactions contemplated hereunder and thereunder and the
fulfillment of the terms hereof and thereof will not conflict
with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which
the Seller is a party or by which it or any of its properties are
bound.
(f) No Violation. The execution and delivery of this Agreement
and each other Series Document, the performance of the
transactions contemplated hereunder and thereunder and the
fulfillment of the terms hereof and thereof will not conflict
with or violate in any material respect any Requirements of Law
applicable to the Seller.
(g) No Proceedings. There are no proceedings pending or, to the
best knowledge of the Seller, threatened against the Seller
before any Governmental Authority (i) asserting the invalidity of
this Agreement or any other Series Document, (ii) seeking to
prevent the consummation of any of the transactions contemplated
by this Agreement or any other Series Document, (iii) seeking any
determination or ruling that, in the reasonable judgment of the
Seller, would materially and adversely affect the performance by
the Seller of its obligations under this Agreement or any other
Series Document, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or
enforceability of this Agreement or any other Series Document or
(v) seeking to affect adversely the income tax attributes of the
Trust.
(h) All Consents Required. All appraisals, authorizations,
consents, orders or other actions of any Person or of any
Governmental Authority required in connection with the execution
and delivery by the Seller of this Agreement and each other
Series Document, the performance of the transactions contemplated
hereunder and thereunder and the fulfillment of the terms hereof,
have been obtained.
(i) Incorporated Representations and Warranties. Its
representations and warranties in Sections 2.3 and 2.4 of the
Pooling and Servicing Agreement are true and correct in all
material respects as of the dates they were so made.
(j) Investment Company Act. Neither the Seller nor the Trust is
required to be registered under the Investment Company Act of
1940, as amended.
(k) No Early Amortization Event, Insolvency Event or Servicer
Default. No Early Amortization Event with respect to the Series
2000-VFC Certificates, Insolvency Event or Servicer Default has
occurred and is continuing, and no event, act or omission has
occurred and is continuing which, with the lapse of time, the
giving of notice or both, would constitute an Early Amortization
Event, Insolvency Event or Servicer Default.
(l) Series 2000-VFC Certificates. The Series 2000-VFC
Certificates have been duly and validly authorized, and, when
executed and authenticated in accordance with the terms of the
Pooling and Servicing Agreement and the Supplement, and delivered
to and paid for in accordance with this Agreement, will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement and the
Supplement.
SECTION 5.02 Representations and Warranties of the Servicer.
The Servicer hereby represents and warrants to the Purchasers and
the Administrator as of the Closing Date as follows:
(a) Organization and Good Standing. The Servicer is a
corporation duly organized and validly existing under the laws of
the State of Delaware and has full corporate power, authority and
legal right to own its properties and conduct its business as
such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement and each other Series Document
to which it is a party.
(b) Due Qualification. The Servicer is duly qualified to do
business and is in good standing (or is exempt from such
requirement) in any state required in order to conduct its
business, and has obtained all necessary licenses and approvals
with respect to the Servicer required under applicable law.
(c) Due Authorization. The execution and delivery by the
Servicer of this Agreement and each other Series Document to
which it is a party and the consummation of the transactions
provided for hereunder and thereunder have been duly authorized
by the Servicer by all necessary corporate action on its part and
this Agreement and each other Series Document to which it is a
party will remain, from the time of its execution, an official
record of the Servicer.
(d) Enforceability. Each of this Agreement and each other
Series Document to which the Servicer is a party constitutes a
legal, valid and binding obligation of the Servicer, enforceable
against the Servicer in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws.
(e) No Conflict. The execution and delivery of this Agreement
and each other Series Document to which the Servicer is a party,
the performance of the transactions contemplated hereunder and
thereunder and the fulfillment of the terms hereof and thereof
will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument
to which the Servicer is a party or by which it or any of its
properties are bound.
(f) No Violation. The execution and delivery of this Agreement
and each other Series Document to which the Servicer is a party,
the performance of the transactions contemplated hereunder and
thereunder and the fulfillment of the terms hereof and thereof
will not conflict with or violate in any material respect any
Requirements of Law applicable to the Servicer.
(g) No Proceedings. There are no proceedings pending or, to the
best knowledge of the Servicer, threatened against the Servicer
before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement or any other Series Document to
which it is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any
other Series Document, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Servicer, would
materially and adversely affect the performance by the Servicer
of its obligations under this Agreement or any other Series
Document to which it is a party, (iv) seeking any determination
or ruling that would materially and adversely affect the validity
or enforceability of this Agreement or any other Series Document
or (v) seeking to affect adversely the income tax attributes of
the Trust.
(h) All Consents Required. All appraisals, authorizations,
consents, orders or other actions of any Person or of any
governmental body or official required in connection with the
execution and delivery by the Servicer of this Agreement and each
other Series Document to which it is a party, the performance of
the transactions contemplated hereunder and thereunder and the
fulfillment of the terms hereof, have been obtained.
(i) Incorporated Representations and Warranties. Its
representations and warranties in Section 3.3 of the Pooling and
Servicing Agreement are true and correct in all material respects
as of the dates they were so made.
(j) No Early Amortization Event, Insolvency Event or Servicer
Default. No Early Amortization Event with respect to the Series
2000-VFC Certificates, Insolvency Event or Servicer Default has
occurred and is continuing, and no event, act or omission has
occurred and is continuing which, with the lapse of time, the
giving of notice or both, would constitute an Early Amortization
Event, Insolvency Event or Servicer Default.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
Each of the Purchasers hereby makes the following
representations and warranties to the Seller on which the Seller
shall rely in entering into this Agreement.
SECTION 6.01 Organization. Such Purchaser has been duly
organized and is validly existing and in good standing as a
corporation under the laws of the state governing its formation,
with power and authority to own its properties and to transact
the business in which it is now engaged.
SECTION 6.02 Authority, etc. Such Purchaser has all requisite
power and authority to enter into and perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by
such Purchaser of this Agreement and the consummation by such
Purchaser of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate or partnership
action on the part of such Purchaser. This Agreement has been
duly and validly executed and delivered by such Purchaser and
constitutes a legal, valid and binding obligation of such
Purchaser, enforceable against such Purchaser in accordance with
its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights
and to general principles of equity. Neither the execution and
delivery by such Purchaser of this Agreement nor the consummation
by such Purchaser of any of the transactions contemplated hereby,
nor the fulfillment by such Purchaser of the terms hereof, will
conflict with, or violate, result in a breach of or constitute a
default under any term or provision of the certificate of
incorporation or by-laws of such Purchaser or any Requirement of
Law applicable to such Purchaser.
SECTION 6.03 Securities Act. The Series 2000-VFC Certificate
purchased by such Purchaser pursuant to this Agreement will be
acquired for investment only and not with a view to any public
distribution thereof, and such Purchaser will not offer to sell
or otherwise dispose of its Series 2000-VFC Certificate so
acquired by it (or any interest therein) in violation of any of
the registration requirements of the Act or any applicable state
or other securities laws. Such Purchaser acknowledges that it
has no right to require the Seller to register under the Act or
any other securities law the Series 2000-VFC Certificates to be
acquired by such Purchaser pursuant to this Agreement.
Such Purchaser agrees with the Seller that: (i) such
Purchaser will execute and deliver to the Seller on or before the
Closing Date a certain letter (the "Investment Letter"), in the
form attached hereto as Exhibit B, with respect to the purchase
of the Series 2000-VFC Certificates and (ii) all of the
statements made by such Purchaser in the Investment Letter are
true and correct in all material respects as of the date made.
Each Purchaser understands and agrees that receipt by the Seller
of a duly executed Investment Letter is a condition precedent to
the Seller's obligations hereunder to sell the Series 2000-VFC
Certificates.
SECTION 6.04 Investment Company Act. Neither such Purchaser
nor the Administrator is required to register as an "investment
company" nor is such Purchaser or the Administrator controlled by
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
ARTICLE VII
COVENANTS OF THE SELLER AND THE SERVICER
SECTION 7.01 Rating of Class A Certificates or Notes. To the
extent that any rating provided with respect to the Class A
Certificates or the Conduit Purchaser's Commercial Paper by any
rating agency is conditional upon the furnishing of documents or
the taking of any other action by the Seller, the Seller shall
take all reasonable actions to furnish such documents and take
any such other action.
SECTION 7.02 Information. So long as the Class A Certificates
remain outstanding, the Servicer and the Seller will furnish to
the Conduit Purchaser and the Administrator:
(a) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year
of Charming Shoppes, copies of the financial statements of
Charming Shoppes and its Subsidiaries, prepared on a consolidated
basis in conformity with generally accepted accounting
principles, duly certified by the chief financial officer of
Charming Shoppes;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of Charming Shoppes, copies of the
financial statements of Charming Shoppes and its Subsidiaries,
prepared on a consolidated basis in conformity with generally
accepted accounting principles and duly certified by independent
certified public accountants of recognized standing selected by
Charming Shoppes;
(c) as soon as possible and in any event within three Business
Days of knowledge thereof, notice of (i) any litigation,
investigation or proceeding which, in the Servicer's reasonable
opinion, could have a material adverse effect on the Class A
Certificateholders and (ii) any material adverse development in
previously disclosed litigation;
(d) prior to its effective date, notice of any material change
in the Cardholder Guidelines which, in the Servicer's reasonable
opinion, could have a material adverse effect on the Class A
Certificateholders;
(e) a copy of each certificate, opinion, report, statement,
notice or other communication (other than investment
instructions) furnished by or on behalf of the Seller to the
Trustee or either Rating Agency under the Pooling and Servicing
Agreement or the Supplement, concurrently therewith, and promptly
after receipt thereof, a copy of each notice, demand or other
communication received by or on behalf of the Seller under the
Pooling and Servicing Agreement, the Purchase Agreement or the
Supplement;
(f) such other information (including financial information),
documents, records or reports respecting the Trust, the
Receivables, the Seller, the Originator or the Servicer as a
Purchaser or the Administrator may from time to time reasonably
request; and
(g) as soon as possible and in any event within five Business
Days after the occurrence thereof, notice of each Early
Amortization Event, Servicer Default or event which with the
giving of notice or the passage of time or both would constitute
an Early Amortization Event or Servicer Default.
SECTION 7.03 Access to Information. So long as the Class A
Certificates remain outstanding, the Seller will and will cause
the Originator to, at any time from time to time during regular
business hours, or reasonable notice to the Seller, permit the
Purchasers or the Administrator, or their agents or
representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of the
Seller, the Originator and the Servicer relating to the
Receivables, and
(b) visit the offices and property of the Seller, the Originator
and the Servicer for the purpose of examining such materials
described in clause (a);
provided, that (x) so long as no Early Amortization Event or
Servicer Default has occurred and is continuing no more than one
such examination and visit shall be made by each Purchaser and
the Administrator (or their respective agents and
representatives) in any one year period and (y) the Purchasers
and the Administrator shall use their reasonable efforts to
coordinate any such examination and visit with any similar
examination and visit to be made by any other Purchaser or the
Administrator or other agents and representatives.
Except as provided in Section 10.05, any information
obtained by a Purchaser or the Administrator pursuant to this
Section 7.03 shall be held in confidence by such Purchaser and
the Administrator unless and to the extent such information (i)
has become available to the public, (ii) is required or requested
by any Governmental Authority or in any court proceeding or (iii)
is required by any Requirement of Law. In the case of any
disclosure permitted by clause (ii) or (iii), the Purchaser and
the Administrator shall use commercially reasonable efforts to
(x) provide the Seller with advance notice of any such disclosure
and (y) cooperate with the Seller in limiting the extent or
effect of any such disclosure.
SECTION 7.04 Security Interests; Further Assurances. The
Seller will take all action necessary to maintain the Trustee's
first priority perfected ownership or security interest in the
Receivables and the collateral granted pursuant the Pooling and
Servicing Agreement.
SECTION 7.05 Covenants. The Seller will duly observe and
perform each of its covenants set forth in the Pooling and
Servicing Agreement and the Supplement.
SECTION 7.06 Amendments. The Seller will not make, or permit
any Person to make, any material amendment, modification or
change to, or provide any material waiver under the Pooling and
Servicing Agreement or any Series Document without the prior
written consent of the Administrator and without satisfaction of
the Rating Agency Condition.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01 Legal Conditions to Closing. The parties hereto
will take all reasonable action necessary to obtain (and will
cooperate with one another in obtaining) any consent,
authorization, permit, license, franchise, order or approval of,
or any exemption by, any Governmental Authority or any other
Person, required to be obtained or made by it in connection with
any of the transactions contemplated by this Agreement.
SECTION 8.02 Transfer Restrictions. (a) Except as otherwise
provided in Section 10.04, no Series 2000-VFC 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 Purchaser further agrees
that it will not make any general solicitation or general
advertising for the offer or sale of its Series 2000-VFC
Certificate and will not transfer its Series 2000-VFC Certificate
(or any portion thereof) to any Person except (a) to a Person
within the United States which such Purchaser 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) or (b) to a Person that is an institutional "accredited
investor" within the meaning of Rule 501(a) (1), (2), (3) or (7)
of Regulation D under the Act, that is, in either case, aware
that such resale, pledge or transfer is being made in reliance on
an exemption from registration under the Act, and, in either
case, unless such Person shall have delivered to such Purchaser
an Investment Letter. Each Purchaser further agrees to provide
to any Person purchasing a Series 2000-VFC Certificate (or any
portion thereof) from it a notice advising such purchaser that
resales of the Series 2000-VFC Certificates are restricted as
stated above.
(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
B Certificate unless (i) after giving effect to the execution or
transfer of such Class B Certificate, there would be no more than
5 Private Holders of Class B Certificates and (ii) the other
conditions to transfer set forth in Section 6.3 of the Pooling
Agreement have been satisfied.
SECTION 8.03 Consents, etc. Each Purchaser agrees not to
unreasonably withhold or delay its consent to any amendment or
other matter requiring consent of the Holders of the Series 2000-
VFC Certificates under a provision of any Series Document to the
extent that such provision specifies that such consent is not to
be unreasonably withheld or delayed.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification by the Seller. The Seller agrees
to indemnify and hold harmless each Indemnified Party against any
and all losses, claims, damages, liabilities or expenses,
including legal and accounting fees (collectively, "Losses"), as
incurred (payable promptly upon written request), for or on
account of or arising from or in connection with this Agreement,
including any breach of any representation, warranty or covenant
of the Seller in this Agreement or in any certificate or other
written material delivered pursuant hereto; provided, however,
that the Seller shall not be so required to indemnify any such
Person or otherwise be liable to any such Person hereunder for
any Losses (i) resulting from the performance of the Receivables,
market fluctuations, a shortfall or failure to make payment under
any Enhancement or other similar market or investment risks
associated with ownership of the Class A Certificates, (ii) which
would otherwise be covered in Sections 9.04 hereof, (iii) arising
from such Person's gross negligence or willful misconduct or (iv)
arising from a breach of any representation or warranty set forth
in the Pooling and Servicing Agreement, a remedy for the breach
of which is provided in Sections 2.4 of the Pooling and Servicing
Agreement.
SECTION 9.02 Procedure. In order for an Indemnified Party to
be entitled to any indemnification provided for under this
Agreement in respect of, arising out of, or involving a claim
made by any Person against the Indemnified Party (a "Third Party
Claim"), such Indemnified Party must notify the Seller in writing
of the Third Party Claim within a reasonable time after receipt
by such Indemnified Party of written notice of the Third Party
Claim unless the Seller shall have previously obtained actual
knowledge thereof. Thereafter, the Indemnified Party shall
deliver to the Seller, within a reasonable time after the
Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified
Party relating to the Third Party Claim.
SECTION 9.03 Defense of Claims. If a Third Party Claim is made
against an Indemnified Party, (a) the Seller will be entitled to
participate in the defense thereof and, (b) if it so chooses, to
assume the defense thereof with counsel selected by the Seller,
provided that in connection with such assumption (i) such counsel
is not reasonably objected to by the Indemnified Party and (ii)
the Seller, subject to Section 10.09, first admits in writing its
liability to indemnify the Indemnified Party with respect to all
elements of such claim in full to the extent such claim is valid.
Should the Seller so elect to assume the defense of a Third Party
Claim, the Seller will not be liable to the Indemnified Party for
any legal expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof. If the Seller elects to
assume the defense of a Third Party Claim, the Indemnified Party
will (i) cooperate in all reasonable respects with the Seller in
connection with such defense and (ii) not admit any liability
with respect to, or settle, compromise or discharge, such Third
Party Claim without the Seller's prior written consent, as the
case may be. If the Seller shall assume the defense of any Third
Party Claim, the Indemnified Party shall be entitled to
participate in (but not control) such defense with its own
counsel at its own expense. If the Seller does not assume the
defense of any such Third Party Claim, the Indemnified Party may
defend the same in such manner as it may deem appropriate,
including settling such claim or litigation after giving notice
to the Seller of such terms and, subject to Section 10.09, the
Seller will promptly reimburse the Indemnified Party upon written
request. Anything contained in this Agreement to the contrary
notwithstanding, the Seller shall not be entitled to assume the
defense of any part of a Third Party Claim that seeks an order,
injunction or other equitable relief or relief for other than
money damages against the Indemnified Party.
SECTION 9.04 Increased Cost and Reduced Return.
(a) If (i) Regulation D or (ii) any Regulatory Change occurring
after the date hereof
(A) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the
Federal Reserve Board, but excluding any reserve included in the
determination of the Daily Conduit Purchaser Rate), special
deposit or similar requirement against assets of any Funding
Source, deposits or obligations with or for the account of any
Funding Source or with or for the account of any affiliate (or
entity deemed by the Federal Reserve Board to be an affiliate) of
any Funding Source, or credit extended by any Funding Source
under any Funding Agreement; or
(B) shall change the amount of capital maintained or required or
requested or directed to be maintained by any Funding Source;
(C) shall impose any other condition affecting any Class A
Certificates owned or funded in whole or in part by any Funding
Source, or its obligations or rights, if any, to fund any Class A
Incremental Fundings; or
(D) shall change the rate for, or the manner in which the
Federal Deposit Insurance Corporation (or a successor thereto)
assesses, deposit insurance premiums or similar charges;
and the result of any of the foregoing is or would be
(x) to increase the cost to (or in the case of
Regulation D referred to above, to impose a cost on) a
Funding Source funding the Class A Funded Amount, any
purchases, reinvestments, or loans or other extensions of
credit under any Funding Agreement or any commitment of such
Funding Source with respect to any of the foregoing,
(y) to reduce the amount of any sum received or
receivable by a Funding Source under any Funding Agreement
with respect thereto, or
(z) in the reasonable determination of such Funding
Source, to reduce the rate of return on the capital of a
Funding Source as a consequence of its obligations arising
in connection herewith to a level below that which such
Funding Source could otherwise have achieved but for
Regulation D or such Regulatory Change,
then within thirty days after demand by such Funding Source
(which demand shall be accompanied by a statement setting forth
the basis of such demand), the Seller shall pay to the Conduit
Purchaser solely from amounts remitted to the Seller pursuant to
Section 4.9(a)(xii) of the Supplement, for the benefit of such
Funding Source, such amounts charged to such Funding Source or to
compensate such Funding Source for such reduction. This Section
9.04(a) shall not apply to taxes.
(b) Each Funding Source will promptly notify the Conduit
Purchaser, the Seller and the Administrator of any event of which
it has knowledge which will entitle such Funding Source to
compensation pursuant to this Section 9.04; provided, however, no
failure to give or delay in giving such notification shall
adversely affect the rights of any Funding Source to such
compensation.
(c) In determining any amount provided for or referred to in
this Section 9.04, a Funding Source may use any reasonable
averaging and attribution methods that it (in its sole
discretion) shall deem applicable. Any Funding Source when
making a claim under this Section 9.04 shall submit to the
Conduit Purchaser and the Seller a statement as to such increased
cost or reduced return (including calculation thereof in
reasonable detail), which statement shall, in the absence of
demonstrable error, be conclusive and binding upon Seller.
(d) The Conduit Purchaser agrees that it shall use its
reasonable best efforts to take any action that will avoid the
need to pay, or reduce the amount of, any increased amounts
referred to in paragraph (a); provided that the Conduit Purchaser
shall not be obligated to take any actions that would, in the
reasonable opinion of the Conduit Purchaser, be disadvantageous
to the Conduit Purchaser.
(e) Subject to Section 9.04(g), any and all payments made under
this Agreement shall be made free and clear of, and without
deduction for, any and all present or future Taxes. If any
amount of Taxes shall be required by law to be deducted from or
in respect of any sum payable hereunder to any Foreign Funding
Source that is an assignee or participant of the Conduit
Purchaser, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 9.04(e)), such Foreign Funding Source receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Seller shall make such deductions and (iii)
the Seller shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law solely from amounts remitted to the Seller
pursuant to Section 4.9(a)(xii) of the Supplement.
(f) Each Foreign Funding Source that is an assignee or
participant of the Conduit Purchaser, on or prior to the date
pursuant to which it becomes an assignee or participant of the
Conduit Purchaser, and from time to time thereafter if requested
in writing by the Seller (unless such Funding Source can no
longer lawfully do so due to a change in law subsequent to the
date it became an assignee or participant of Purchaser
hereunder), shall provide Seller with such form(s) prescribed by
the Internal Revenue Service, certifying that such Funding Source
is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding
tax on payments of interest to zero or certifying that the income
receivable pursuant to this Agreement is effectively connected
with the conduct of a trade or business in the United States.
(g) For any period with respect to which a Funding Source that
is a Foreign assignee or participant of the Conduit Purchaser has
failed to provide the Seller with the appropriate form described
in Section 9.04(f) (other than if such failure is due to a change
in law occurring subsequent to the date on which a form
originally was required to be provided), such Funding Source
shall not be entitled to payments of additional amounts under
Section 9.04(e).
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments. No amendment or waiver of any
provision of this Agreement shall in any event be effective
unless (x) the same shall be in writing and signed by all of the
parties hereto, and (y) if such amendment or waiver could
reasonably be expected to adversely affect the holders of
Commercial Paper, the Rating Agency Condition shall have been
satisfied and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
SECTION 10.02 Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be
in writing (including telecopies, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, cabled or
delivered, as to each party hereto, at its address set forth in
Schedule I hereto or at such other address as shall be designated
by such party in a written notice to the other party hereto. All
such notices and communications shall, when mailed, telecopied,
telegraphed or cabled, be effective when deposited in the mails,
confirmed by telephone, delivered to the telegraph company or
delivered to the cable company, respectively.
SECTION 10.03 No Waiver; Remedies. No failure on the part of
any party hereto to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.04 Binding Effect; Assignability. (a) This
Agreement shall be binding upon and inure to the benefit of the
Seller, the Administrator and the Purchasers and their respective
successors and assigns (including any subsequent holders of the
Series 2000-VFC Certificates); provided, however, that the Seller
shall not have the right to assign its rights hereunder or any
interest herein (by operation of law or otherwise) without the
prior written consent of the Administrator and the Purchasers,
which consent shall not be unreasonably withheld. The
Administrator and the Conduit Purchaser each agrees that it shall
not transfer a Class A Certificate or any interest therein
without the Seller's consent, unless such transfer is to a
Liquidity Purchaser. The Seller agrees that it will not
unreasonably withhold its consent to the transfer by the
Administrator and the Conduit Purchaser of a Class A Certificate
to a special purpose company which is administered by the
Administrator and engages in activities substantially similar to
the Conduit Purchaser. The Class B Purchaser agrees that it
shall not transfer a Class B Certificate without the
Administrator's consent, unless such transfer is to an affiliate
of the Class B Purchaser.
(b) This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms,
and shall remain in full force and effect until such time as all
amounts payable with respect to the Series 2000-VFC Certificates
shall have been paid in full.
SECTION 10.05 Provision of Documents and Information. The
Seller acknowledges and agrees that the Conduit Purchaser and the
Administrator are permitted to provide to permitted assignees and
participants, the placement agents for the Commercial Paper, the
rating agencies with respect to the Commercial Paper and other
liquidity and credit providers under their respective commercial
paper programs, opinions, certificates, documents and other
information relating to the Seller, the Originator, the Servicer
and the Receivables delivered to the Purchasers or the
Administrator pursuant to this Agreement.
SECTION 10.06 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS CERTIFICATE PURCHASE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH
OF THE PARTIES TO THIS CERTIFICATE PURCHASE AGREEMENT HEREBY
AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT
HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE
PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS
AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT.
(b) EACH OF THE PARTIES HERETO WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY
DOCUMENT EXECUTED BY ANY PARTY PURSUANT TO THIS AGREEMENT OR THE
RELATIONSHIPS ESTABLISHED HEREUNDER.
SECTION 10.07 No Proceedings. (a) The Seller agrees that so
long as Commercial Paper of the Conduit Purchaser shall be
outstanding or there shall not have elapsed one year plus one day
since the last day on which any Commercial Paper of the Conduit
Purchaser shall have been outstanding, it shall not file, or join
in the filing of, a petition against the Conduit Purchaser under
any Debtor Relief Laws, or join in the commencement of any
bankruptcy, reorganization, arrangement, insolvency, liquidation
or other similar proceeding against the Conduit Purchaser.
(b) Each Purchaser severally agrees that it shall not at any
time file, or join in the filing of, a petition against the Trust
or the Seller under any Debtor Relief Laws, or join in the
commencement of any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar proceeding against the
Seller or the Trust.
SECTION 10.08 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement.
SECTION 10.09 No Recourse. The obligations of the Conduit
Purchaser, the Servicer or the Seller (each , a "Securitization
Entity") under this Agreement, or any other agreement,
instrument, document or certificate executed and delivered by or
issued by such Securitization Entity or any officer thereof are
solely the corporate or partnership obligations of such
Securitization Entity. No recourse shall be had for payment of
any fee or other obligation or claim arising out of or relating
to this Agreement or any other agreement, instrument, document or
certificate executed and delivered or issued by such
Securitization Entity, or any officer thereof in connection
therewith, against any stockholder, limited partner, employee,
officer, director or incorporator of such Securitization Entity,
provided, however, that provisions of this section shall not
relieve any of the foregoing persons from any liability arising
from his, her or its intentional misrepresentation or willful
misconduct.
SECTION 10.10 Survival. All representations, warranties,
covenants, guaranties and indemnifications contained in this
Agreement and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the sale,
transfer or repayment of the Series 2000-VFC Certificates.
SECTION 10.11 Tax Characterization. Each party to this
Agreement (a) acknowledges and agrees that it is the intent of
the parties to this Agreement that, for federal, state and local
income and franchise tax purposes only, the Class A Certificates
will be treated as evidence of indebtedness secured by the
Receivables and proceeds thereof and the Trust will not be
characterized as an association (or publicly traded partnership)
taxable as a corporation, (b) agrees to treat the Class A
Certificates for federal, state and local income and franchise
tax purposes as indebtedness and (c) agrees that the provisions
of this Agreement and all related Series Documents shall be
construed to further these intentions of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
CHARMING SHOPPES RECEIVABLES
CORP.,
as Seller
By:
Name:
Title:
MONTE ROSA CAPITAL CORPORATION,
as Conduit Purchaser
By ING Baring (U.S.) Capital
Markets LLC
as attorney-in-fact
By:
Name:
Title:
ING BARING (U.S.) CAPITAL MARKETS
LLC
as Administrator
By:
Name:
Title:
CHARMING SHOPPES RECEIVABLES
CORP.,
as Class B Purchaser
By:
Name:
Title:
SPIRIT OF AMERICA, INC.,
as Servicer
By:
Name:
Title:
EXHIBIT A
Form of Notice of
Incremental Funding
A. Proposed Incremental Funding Date: ___________
B. Amount of requested Class A Incremental Funding $_________
C. Purchase Price (100% of the related Class A $_________
Incremental Funding Amount)
D. Remaining Maximum Class A Funded Amount (excluding $_________
the requested Class A Incremental Funding)
E. Remaining Maximum Class A Funded Amount (after $_________
giving effect to the requested Class A Incremental
Funding on the date hereof)
F. Amount of requested Class B Incremental Funding $_________
G. Purchase Price (100% of the related Class B $_________
Incremental Funding Amount)
H. Remaining Maximum Class B Funded Amount (excluding $_________
the requested Class B Incremental Funding)
I. Remaining Maximum Class B Funded Amount (after $_________
giving effect to the requested Class B Incremental
Funding on the date hereof)
F. Certifications:
1. The representations and warranties of Charming Shoppes
Receivables Corp. ("CSRC") in the Second Amended Pooling
and Servicing Agreement dated as of November 25, 1997 (as
amended or otherwise modified, the "Pooling and Servicing
Agreement"), among CSRC, as Seller, Spirit of America,
Inc., as Servicer, and First Union National Bank, as
trustee (the "Trustee"), and the Certificate Purchase
Agreement dated as of November 9, 2000 (as amended or
otherwise modified, the "Agreement"), among CSRC, the
Conduit Purchaser, the Administrator, the Servicer and
the Class B Purchaser are true and correct on the date
hereof.
2. The applicable Incremental Funding Conditions specified
in Section 2.02(a) of the Agreement, if a Class A
Incremental Funding is requested hereby, and Section
2.04(a) of the Agreement, if a Class B Incremental
Funding is requested hereby, have been satisfied and/or
will be satisfied as of the applicable Incremental
Funding Date.
CHARMING SHOPPES RECEIVABLES CORP.
By
Authorized Officer
Date of Notice:
EXHIBIT B
[Form of Investment Letter]
November 9, 2000
First Union National Bank
000 Xxxxx Xxxxx Street, M.B.O., 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Corporate Trust Administration
Charming Shoppes Receivables Corp.
c/o Charming Shoppes, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Purchase of [Class A/Class B] Certificate
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by
____________________ (the "Purchaser") and [____________________
("__________"), as Administrator](1) pursuant to Section 6.03 of
the Certificate Purchase Agreement dated as of November 9, 2000
(as amended or otherwise modified, the "Agreement") among
Charming Shoppes Receivables Corp. ("CSRC"), Spirit of America,
Inc., as Servicer, the Conduit Purchaser, the Class B Purchaser
and the Administrator. Capitalized terms used herein without
definition shall have the meanings set forth in the Agreement.
The Purchaser represents to the Seller as follows:
(a) the Purchaser is authorized to enter into the Agreement and
to perform its obligations thereunder and to consummate the
transactions contemplated thereby;
(b) the Purchaser [and Administrator] 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 [Class
A/Class B] Certificate and the Purchaser is able to bear the
economic risk of such investment;
(c) the Purchaser [and Administrator] have reviewed the Pooling
and Servicing Agreement and the Supplement (including the
schedules and exhibits thereto) and have had the opportunity to
perform due diligence with respect thereto and to ask questions
of and receive answers from the Seller and its representatives
concerning the Seller, the Servicer, the Originator, the Trust
and the [Class A/Class B] Certificates;
(d) [Administrator is an agent on behalf of the Purchaser and
the Purchaser is not acquiring the Class A Certificate as an
agent or otherwise for any other person.] The Purchaser is a
[____________________]; [Administrator is a
[____________________]];
(e) Each of the Purchaser [and Administrator] is either (x) an
"accredited investor" (as such term is defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended or (y) a qualified institutional buyer as
defined in Rule 144A promulgated by the Commission under the
Securities Act of 1933, as amended. Each of the Purchaser [and
Administrator] understands that the offering and sale of the
[Class A/Class B] Certificates have not been and will not be
registered under the Securities Act of 1933, as amended, and have
not and will not be registered or qualified under any applicable
"blue sky" law, and that the offering and sale of the [Class
A/Class B] Certificates have not been reviewed by, passed on or
submitted to any federal or state agency or commission,
securities exchange or other regulatory body;
(f) The Purchaser[, through the Administrator], is acquiring
the [Class A/Class B] Certificate without a view to any
distribution, resale or other transfer thereof, except as
contemplated by the following sentence. The Purchaser and
Administrator will not resell or otherwise transfer the [Class
A/Class B] Certificate or any portion thereof, except in
accordance with Section 8.02 of the Agreement.
(g) The Purchaser [and Administrator] understand that each
[Class A/Class B] Certificate will bear a legend to substantially
the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS UNDER STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT, THE SUPPLEMENT AND THE
CERTIFICATE PURCHASE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
ACQUIRED BY (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT SECURITY ACT OF
1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE 1 OF ERISA, (B) A PLAN DESCRIBED IN
SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (C) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY
(EACH A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING THIS
CERTIFICATE OR ANY INTEREST HEREIN, THE HOLDER HEREOF OR ANY
OWNER OF AN INTEREST HEREIN SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
(h) This Investment Letter has been duly authorized, executed
and delivered and constitutes the legal, valid and binding
obligations of the Purchaser [and the Administrator], enforceable
against the Purchaser [and the Administrator] in accordance with
its terms, except as such enforceability may be limited by
receivership, conservatorship, bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general principles
of equity.
(i) [Each of] the Purchaser and [the Administrator] represents
and warrants that neither the Purchaser [nor the Administrator]
is (i) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Internal
Revenue Code, or (iii) an entity whose underlying assets include
plan assets by reason of a plan's investment in such entity.
Very truly yours,
,
as Purchaser
By:
Name:
Title:
,
as Administrator
By:
Name:
Title:
SCHEDULE I
Addresses for Notices
Monte Rosa Capital Corporation
c/o ING Baring (U.S.) Capital Markets LLC
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
ING Baring (U.S.) Capital Markets LLC
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Spirit of America, Inc.
c/o Spirit of American National Bank
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxx 00000
Attn: General Counsel
Fax: (215)
Phone: (215)
Charming Shoppes Receivables Corp.
c/o Fashion Service Corp.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
Fax:
Phone:
_______________________________
(1) Bracketed language for conduit purchasers only.
