CERTIFICATE PURCHASE AGREEMENT among as Trustee CHARMING SHOPPES RECEIVABLES CORP., as Seller SPIRIT OF AMERICA, INC., as Servicer and THE CLASS C HOLDERS DESCRIBED HEREIN dated as of October 17, 2007
EXHIBIT
10.4
among
U.S.
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 October 17, 2007
TABLE
OF CONTENTS
Page
|
||
DEFINITIONS
|
1
|
|
SECTION
1.1
|
Defined
Terms
|
1
|
SECTION
1.2
|
Other
Definitional Provisions
|
6
|
ARTICLE
II
|
AMOUNT
AND TERMS OF CLASS C CERTIFICATE
|
6
|
SECTION
2.1
|
Purchase
|
6
|
SECTION
2.2
|
Distributions
|
6
|
SECTION
2.3
|
Interest
Rate; Payment Dates
|
7
|
SECTION
2.4
|
Payments
|
8
|
SECTION
2.5
|
Class
C Spread Account
|
8
|
SECTION
2.6
|
Nonrecourse
and Recourse Obligations; Obligations Absolute
|
9
|
SECTION
2.7
|
Indemnification
|
9
|
SECTION
2.8
|
Increased
Cost, Reduced Return and Taxes
|
11
|
ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES OF SELLER AND SERVICER
|
13
|
SECTION
3.1
|
Representations
and Warranties of the Servicer
|
13
|
SECTION
3.2
|
Representations
and Warranties of the Seller
|
15
|
ARTICLE
IV
|
CONDITIONS
PRECEDENT
|
17
|
SECTION
4.1
|
Representations
and Warranties
|
17
|
SECTION
4.2
|
Documents
|
17
|
SECTION
4.3
|
Related
Agreements
|
17
|
SECTION
4.4
|
Accountants’
Letter
|
17
|
SECTION
4.5
|
Certificate
Issuance
|
17
|
SECTION
4.6
|
Officer’s
Certificates
|
17
|
SECTION
4.7
|
Spread
Account
|
18
|
SECTION
4.8
|
Certificate
Rating
|
18
|
SECTION
4.9
|
The
Trustee
|
18
|
SECTION
4.10
|
Additional
Documents
|
18
|
ARTICLE
V
|
COVENANTS
OF THE SELLER AND SERVICER
|
18
|
SECTION
5.1
|
Certificates
|
18
|
SECTION
5.2
|
Monthly
Status Reports
|
18
|
-i-
|
TABLE
OF CONTENTS
(continued)
Page
|
||
SECTION
5.3
|
Servicer
Default
|
19
|
SECTION
5.4
|
Reassignment
of Certificates
|
19
|
SECTION
5.5
|
Rule
144A Information
|
19
|
SECTION
5.6
|
Seller
Financial Information; Other Information; Confidentiality
|
19
|
SECTION
5.7
|
Class
C Holders’ Identities
|
19
|
SECTION
5.8
|
Amendments
and Modifications
|
20
|
SECTION
5.9
|
Trigger
Increase Event
|
21
|
SECTION
5.10
|
Liens
|
21
|
SECTION
5.11
|
Discount
Option Receivables
|
21
|
SECTION
5.12
|
Access
|
21
|
SECTION
5.13
|
Performance
of Agreements
|
21
|
SECTION
5.14
|
Payments
|
21
|
SECTION
5.15
|
Further
Actions
|
22
|
SECTION
5.16
|
Class D
Cancellation
|
22
|
ARTICLE
VI
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE
INITIAL CLASS C HOLDERS AND THE TRUSTEE
|
22
|
SECTION
6.1
|
Representations,
Warranties and Covenants of the Class C Holders
|
22
|
SECTION
6.2
|
Representations,
Warranties and Covenants of the Trustee
|
23
|
ARTICLE
VII
|
MISCELLANEOUS
|
24
|
SECTION
7.1
|
Amendments
and Waivers
|
24
|
SECTION
7.2
|
Servicer
Transfer
|
24
|
SECTION
7.3
|
Fees
and Expenses
|
24
|
SECTION
7.5
|
No
Waiver
|
25
|
SECTION
7.6
|
Severability
|
25
|
SECTION
7.7
|
Termination
|
25
|
SECTION
7.8
|
Transfer
Restrictions
|
25
|
SECTION
7.9
|
Notices
|
26
|
SECTION
7.10
|
Survival
of Representations and Warranties
|
27
|
SECTION
7.11
|
Exclusive
Benefit
|
27
|
-ii-
|
TABLE
OF CONTENTS
(continued)
Page
|
||
SECTION
7.12
|
Limitation
of Remedies
|
27
|
SECTION
7.13
|
Counterparts
|
27
|
SECTION
7.14
|
Entire
Agreement
|
28
|
SECTION
7.15
|
Headings
|
28
|
SECTION
7.16
|
Nonpetition
Agreement
|
28
|
SECTION
7.17
|
Waiver
of Jury Trial
|
28
|
SCHEDULE
I
|
Initial
Class C Holders
|
|
SCHEDULE
II
|
Conditions
Precedent
|
|
EXHIBIT
A
|
Form
of Monthly Report
|
|
EXHIBIT
B
|
Form
of Purchaser Representation Letter
|
-iii-
|
CERTIFICATE
PURCHASE AGREEMENT, dated as of October 17, 2007, among U.S. 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, Inc.”), as
Servicer, CHARMING SHOPPES RECEIVABLES CORP., a Delaware corporation
(“CSRC”), as Seller, and the purchasers of the Class C Certificates
named on the signature pages of this Agreement (each an “Initial Class C
Holder”; and together with its permitted transferees, a “Class C
Holder”).
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
heretofore amended by amendments thereto, 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 2007-1 Supplement, dated
as of October 17, 2007 to the Pooling and Servicing Agreement (as the same
may
from time to time be amended, modified or otherwise supplemented, the
“Supplement”); and
WHEREAS
the Initial Class C Holders have agreed to purchase the Class C Certificates
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.
“Administrator”
shall mean State Street Global Markets, LLC and its successors and
assigns.
“Agreement”
shall mean this Certificate Purchase Agreement, as amended, supplemented or
otherwise modified from time to time.
“Available
Amounts” shall mean, with respect to each Distribution Date, sum of
Available Interest Amounts and Available Principal Amounts, in each case, as
of
such Distribution Date.
“Available
Interest Amounts” shall mean, with respect to each Distribution Date, the
sum of (a) the amounts distributed by the Servicer or the Trustee (acting in
accordance with instructions of the Servicer) for application under this
Agreement pursuant to Section 4.11(h) and 4.11(l) of Article
IV under Section 8 of the Supplement plus (b) Investment Earnings, if
any,
available
to be paid from the Class C Spread Account pursuant to Section 2.5 plus
(c) amounts paid to the Trust pursuant to the Class C Cap.
“Available
Principal Amounts” shall mean, with respect to each Distribution Date, an
amount equal to the amount distributed by the Servicer or the Trustee (acting
in
accordance with instructions of the Servicer) for application under this
Agreement pursuant to Section 4.9(f)(i), 4.9(g)(iv) or
4.9(g)(vi) of Article IV under Section 8 of the
Supplement.
“Class
C Additional Interest” shall mean, on any Distribution Date, an amount equal
to the product of (i) (A) a fraction, the numerator of which is the actual
number of days in the related Interest Period and the denominator of which
is
360, times (B) the sum of the applicable Class C Certificate Rate in
effect on such Distribution Date and 1% times (ii) any Class C Deficiency
Amounts from the prior Distribution Date (or the portion thereof which has
not
theretofore been paid to the Class C Holders).
“Class
C Certificate Rate” shall mean LIBOR plus the “Applicable Spread” as
defined in the Class C Fee Letter.
“Class
C Expected Final Payment Date” shall mean the February 2013 Distribution
Date.
“Class
C Fee Letter” shall mean the fee letter dated as of the date hereof among
the Seller, the Servicer and the Class C Holders.
“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 Holders.
“Class
C Reduction Rate” shall mean, on any day, the applicable Class C
Certificate Rate in effect on such Distribution Date plus the “Reduction
Spread” as defined in the Class C Fee Letter.
“Closing
Date” shall mean October 17, 2007.
“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to
time.
“Commercial
Paper” shall mean the commercial paper promissory notes issued by a
Structured Holder in the commercial paper market.
“Commission”
shall mean the Securities and Exchange Commission.
“Credit
Agreement” shall mean any agreement (other than the Liquidity Agreement) now
or hereafter entered into by a Structured Holder providing for the issuance
of
one or more letters of credit for the account of such Structured Holder, the
making of loans to such Structured Holder or any other extensions of credit
to
or for the account of such Structured Holder to support all or any part of
such
Structured Holder’s payment obligations under its Commercial
2
Paper
or
to provide an alternate means of funding such Structured Holder’s investments in
accounts receivable or other financial assets, in each case as amended,
supplemented or otherwise modified from time to time.
“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) the Excess Spread for such Distribution Date, minus
(i) the Shared Excess Finance Charge Collections from Series other than
Series 2007-1 included in the calculation of Excess Spread for such
Distribution Date and (ii) the sum of (A) amounts required to be applied
pursuant to Sections 4.11(a) through (q) of the Supplement (other
than Section 4.11(l))plus (B) the amounts required to be applied
pursuant to Sections 2.2(b)(ii) through 2.2(b)(iv) of this
Agreement times (b) twelve, and the denominator of which is the Series Investor
Interest for such Distribution Date.
“Expense
Cap” shall have the meaning set forth in the Class C Fee
Letter.
“Foreign”
shall mean, with respect to any Funding Source that is an assignee or
participant of a Structured Holder, any Person not organized under the laws
of
the United States, one of the states thereof, or the District of
Columbia.
“Funding
Agreement” shall mean any agreement or instrument executed by any Funding
Source with or for the benefit of a Structured Holder.
“Funding
Source” shall mean any insurance company, bank or other financial
institution providing liquidity, credit enhancement or back-up purchase support
or facilities to a Structured Holder in respect of commercial paper issued
by
such Structured Holder, the proceeds of which were used to fund the Class C
Investor Interest.
“GAAP”
shall mean United States generally accepted accounting principles.
“Indemnifying
Party” shall have the meaning assigned thereto in Section 2.7(b)
of this Agreement.
“Indemnitee”
shall have the meaning assigned thereto in Section 2.7(a) of this
Agreement.
“Initial
Class C Holder” shall have the meaning assigned thereto in the preamble of
this Agreement.
“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
3
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
Class C Spread Account investments (net of losses and investment expenses)
during the Interest Period ending on such Distribution Date.
“Liquidity
Agreement” shall mean each of those certain Liquidity Asset Purchase
Agreements, dated as of October 17, 2007, among State Street Bank and Trust
Company, as Liquidity Agent, the Administrator, the Initial Class C Holder
named
therein and each of the purchasers party thereto, as amended from time to
time.
“Monthly
Payment Percentage” shall mean, for any Due Period, the percentage
equivalent of a fraction, the numerator of which is an amount equal to the
aggregate Collections received during such Due Period and the denominator of
which is the aggregate Outstanding Balance of all Receivables as of the close
of
business on the last day of the immediately preceding Due Period.
“Proposed
Transfer” shall have the meaning assigned thereto in Section
7.8(c).
“Regulation
D” shall mean 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” shall mean, relative to any Funding Source:
(a) any
change in (or the adoption, implementation, 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 (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.
4
“Repayment
Amount” shall mean, as of any date, amounts owed to the Class C Holders
hereunder or under the Supplement.
“Required
Class C Holders” shall mean Holders of Class C Certificates
representing more than 50% of the Class C Investor Interest.
“Required
Class C Spread Amount” shall have the meaning given in the Class C Fee
Letter.
“Senior
Certificate Purchase Agreement” shall mean the Certificate Purchase
Agreement dated as of October 10, 2007, among the Seller, the Servicer, Fashion
Service Corp. and Barclays Capital Inc., relating to offer and sale of the
Class
A Certificates, the Class M Certificates and the Class B
Certificates.
“Spirit,
Inc.” has the meaning assigned thereto in the preamble.
“State
Street Related Party” shall mean State Street Bank and Trust Company, each
Initial Class C Holder and any other Structured Holder owned or
administered by State Street Bank and Trust Company or the
Administrator.
“Structured
Holder” shall mean each Initial Class C Holder and any other Class C Holder
the principal business of which consists of issuing commercial paper promissory
notes to fund its acquisition and maintenance of receivables, accounts,
instruments, chattel paper, general intangibles and other similar assets or
interests therein and which is required by any nationally recognized rating
agency which is rating such Commercial Paper to obtain from its principal
debtors an agreement such as that set forth in Section 7.16(b) of this
Agreement in order to maintain such rating.
“Taxes”
shall mean, in the case of any Funding Source that is an assignee or participant
of a Structured Holder, 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 C Investor Interest is located (or any political
subdivision thereof), or (iii) any jurisdiction in which such Funding Source
is
already subject to tax.
“Three
Month Excess Yield Percentage” shall mean, with respect to any Distribution
Date, the average of the Excess Yield Percentages for the most recent three
Distribution Dates, including such Distribution Date (or, if less than three
Distribution Dates have occurred since the Closing Date, for such Distribution
Dates as shall have occurred).
“Trigger
Increase Event” shall have the meaning given in the Class C Fee
Letter.
“Trust”
has the meaning assigned thereto in the preamble.
“Trustee”
has the meaning assigned thereto in the preamble.
5
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 Certificate
SECTION
2.1 Purchase. (a)
Subject to terms and conditions hereof, each 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 Distributions. On
each Distribution Date, the Trustee (at the direction of the Servicer and upon
receipt of the report substantially in the form of Exhibit A hereto to be
delivered to each Class C Holder on the related Determination Date) shall
distribute Available Amounts with respect to such date to the following Persons
in the order of priority listed below:
(a) Available
Principal Amounts, if any, shall be distributed to the Class C Holders to pay
Class C Monthly Principal, if any, on such Distribution Date.
(b) Available
Interest Amounts shall be distributed as follows:
(i) an
amount
equal to Class C Monthly Interest for such Distribution Date shall be
distributed to the Class C Holders;
(ii) an
amount
equal to the lesser of (A) any amounts remaining after the payment made pursuant
to clause (i) above and (B)(I) any Class C Deficiency Amount for such
Distribution Date plus (II) any Class C Additional Interest for such
Distribution Date (and any Class C Additional Interest previously payable
pursuant to this clause (ii) but not paid on a prior Distribution Date)
shall be distributed to the Class C Holders;
6
(iii) an
amount
equal to the lesser of (A) any amounts remaining after the payments made
pursuant to clauses (i) and (ii) above and (B) an amount equal to
the sum of any amounts owed to the Class C Holders or any Funding Source
pursuant to the Class C Fee Letter or Section 2.7, 2.8 or
7.3 hereof shall be distributed to the Class C Holders;
(iv) an
amount
equal to the lesser of (A) any amounts remaining after the payments made
pursuant to clauses (i) through (iii) above and (B) an amount
equal to the sum of (1) the product of (x) the Class C Reduction Amount as
of
the most recently preceding Distribution Date times (y) the Class C
Reduction Rate, times (z) a fraction, the numerator of which is the
actual number of days in the related Interest Period and the denominator of
which is 360 and (2) any amounts payable pursuant to this subclause (iv)
on a prior Distribution Date and not so paid;
(v) an
amount
equal to the lesser of (A) any amounts remaining after the payments made
pursuant to clauses (i) through (iv) above and (B) on any
Distribution Date occurring during the Early Amortization Period, an amount
equal to the outstanding Class C Reduction Amount on such Distribution Date,
if
any, shall be distributed to the Class C Holders, it being understood that
the
aggregate amount distributed to the Class C Holders pursuant to Section
2.2(a) and this subclause (v) shall not exceed the Class C Initial
Investor Interest;
(vi) an
amount
equal to the lesser of (A) any amounts remaining after the payments made
pursuant to clauses (i) through (v) above and (B) an amount equal
to the excess, if any, of the Required Class C Spread Amount over the amount
on
deposit in the Class C Spread Account shall be transferred to the Class C Spread
Account; and
(vii) an
amount
equal to the amounts remaining after the payments made pursuant to clauses
(i) through (vi) above shall be paid to the holder of the
Exchangeable Seller Certificate.
(c) In
order
to effect the distributions required to be made under this Section 2.2,
this Agreement hereby requires that amounts be paid pursuant to Section
4.11(l) of Article IV under Section 8 of the Supplement, in
each case to the extent funds are available for such payment under the terms
of
the Supplement, to be used to fund amounts described in Section
2.2(b).
SECTION
2.3 Interest
Rate; Payment Dates.
(a) The
Class
C Investor Interest shall bear interest at the applicable Class C Certificate
Rate.
(b) The
Class
C Reduction Amount shall bear interest at the applicable Class C Reduction
Rate.
(c) Class
C
Monthly Interest, Class C Deficiency Amounts, Class C Additional Interest
and Class C Monthly Principal shall be payable on each Distribution Date,
as provided in Section 2.2 hereof and the Supplement.
7
SECTION
2.4 Payments. On
or prior to 10:00 a.m., New York City time, on each Distribution Date, the
Servicer shall deliver instructions to the Trustee regarding all payments to
be
made hereunder on such Distribution Date. 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 thereof, to each Class C
Holder in accordance with the terms of the Pooling and Servicing Agreement
and
the Supplement.
SECTION
2.5 Class
C 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 “Class C 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 Class C 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
Class
C 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 Class C 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
Class C 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 Class C 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 Class C Spread Account. The Trustee at
the written direction of the Servicer (or the Servicer on the Trustee’s behalf)
shall make withdrawals from the Class C Spread Account from time to time for
the
purposes set forth in this Section 2.5. Funds on deposit
in the Class C 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 and in
accordance with the information set forth in Exhibit A) apply all
interest and other investment earnings (net of losses and investment expenses)
as Available Interest Amounts, to the extent such interest and earnings together
with other funds in the Class C Spread Account exceed the Required Class C
Spread Amount, as provided in Section 2.2). Funds on deposit
in the Class C 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 aggregate amount available for distribution pursuant
to
Section 2.2 on such Distribution Date is less than the aggregate
amount required to be distributed pursuant to Sections 2.2 (b)(i) through
(v), then the Servicer shall direct the Trustee to withdraw the
amount of
such deficiency, up to the amount available in the Class C
8
Spread
Account, from the Class C Spread Account and apply such amount in the order
of
priority and in the manner set forth in Sections 2.2 (b)(i) through
(v).
(c) If
on any
Distribution Date, after giving effect to all withdrawals from and deposits
to
the Class C Spread Account, including any withdrawals required under
paragraph (b) above, the amount on deposit in the Class C Spread
Account would exceed the Required Class C Spread Amount, then such excess shall
be distributed on such date to the Holder of the Exchangeable Seller
Certificate. On the date on which the Class C Investor Interest has
been reduced to zero and all other amounts owing to the Class C Holders
hereunder and under the Supplement have been paid in full, the Servicer shall
direct the Trustee to distribute all amounts then remaining in the Class C
Spread Account to the Holder of the Exchangeable Seller
Certificate.
SECTION
2.6 Nonrecourse
and Recourse Obligations; Obligations Absolute. Except as
provided in Section 2.7, notwithstanding any provision in any other
Section of this Agreement to the contrary, the obligation to pay the Repayment
Amount 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 Available
Amounts, as described in Section 2.2 hereof, and withdrawals from the
Class C Spread Account as described in Section 2.5 hereof, in the Pooling
and Servicing Agreement and the Supplement, which amounts shall be subordinated
to the rights of other Investor Certificateholders as provided herein and in
the
Pooling and Servicing Agreement and the Supplement.
SECTION
2.7 Indemnification. (a)
The Trust, acting through the Trustee (and at the direction of the Servicer),
but only to the extent funds are available therefor under Section 2.2 and
Section 2.5, the Seller and the Servicer agree to indemnify and hold
harmless each Class C Holder and any director, officer, employee, representative
or agent of such Class C Holder (each such Person being an “Indemnitee”)
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable fees and expenses of counsel) whatsoever (other
than claims for payment of Class C Monthly Interest, Class C
Deficiency Amounts and Class C Monthly Principal) which the Indemnitee may
incur (or which may be claimed against the Indemnitee) by reason of or in
connection with (i) the execution and delivery of payment under, this Agreement
or the Class C Investor Interest or (ii) the transactions contemplated hereby,
except (A) to the extent that any such claim, damage, loss, liability, cost
or
expense shall be caused by the willful misconduct or gross negligence of the
Indemnitee in performing its obligations under this Agreement or a Class C
Certificate, (B) to the extent that any such claim, damage, loss, liability,
cost or expense relates to any income or franchise tax based on the net income
of such Class C Holder or any other tax upon or measured by income, gross
receipts, assets or capital of such Class C Holder imposed by the United States
of America or by any state, locality or foreign jurisdiction in which such
Class
C Holder maintains an office or permanent establishment or is otherwise doing
business or (C) as provided in Section 7.3 hereof. If an
Indemnitee has a claim for indemnification pursuant to this Section 2.7
arising from (i) any representation and warranty of the Seller or the
Servicer made herein or in the Pooling and Servicing Agreement being incorrect
in any material respect when made, (ii) noncompliance by the Seller or the
Servicer with the terms and provisions of this Agreement, the Pooling
and
9
Servicing
Agreement or the Supplement or (iii) the amounts of any Class C Reduction
Amount, to the extent such amounts represent amounts which the Seller or the
Servicer failed to deposit in the Collection Account in accordance with the
Pooling and Servicing Agreement, together with interest thereon, such claim,
notwithstanding the terms of Section 2.6, shall be with recourse to
the Seller or the Servicer, as the case may be, but not to any successor to
the
Servicer. Notwithstanding the preceding sentence, the sole remedy
against the Seller or the Servicer for a breach of a representation, warranty
or
covenant made in the Pooling and Servicing Agreement shall be limited to the
right to remedies provided therein and this Section 2.7 is not intended
to create any claim against the Seller or Servicer not otherwise created by
the
terms of the Pooling and Servicing Agreement.
(b) Promptly
after the receipt by any Indemnitee of a notice of commencement of any action,
such Indemnitee will, if a claim in respect thereof is to be made against the
Trust, the Seller or the Servicer pursuant to Section 2.7(a) (the
“Indemnifying Party”), notify such Indemnifying Party in writing of the
commencement thereof; but the omission so to notify such Indemnifying Party
will
not relieve such Indemnifying Party from any liability which it may have to
such
Indemnitee pursuant to Section 2.7(a) except and to the extent of any
prejudice to such Indemnifying Party arising from such failure to provide such
notice. In case any such action shall be brought against any
Indemnitee and it shall notify the Indemnifying Party of the commencement
thereof, the Indemnifying Party shall be entitled to participate therein and,
to
the extent that it shall wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense thereof, with counsel satisfactory
to
such Indemnitee (who shall not, except with the consent of such Indemnitee,
be
counsel to the Indemnifying Party) with respect to such action, and it being
understood that the Indemnifying Party shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same
jurisdiction arising out of the same general allegations or circumstances,
be
liable for the reasonable fees and expenses of more than one separate firm
of
attorneys for all such indemnified parties. Upon receipt of notice
from an Indemnifying Party to such Indemnitee of such Indemnifying Party’s
election so to appoint counsel to assume the defense of such action and approval
by such Indemnitee of such counsel, such Indemnifying Party will not be liable
to such Indemnitee under this Section 2.7 for any legal or other expenses
subsequently incurred by such Indemnitee in connection with the defense thereof
other than reasonable costs of investigation. No Indemnifying Party
shall, without the prior written consent of the Indemnitee, effect any
settlement of any pending or threatened action in respect of which any
Indemnitee is or could have been a party and indemnity could have been sought
hereunder by such Indemnitee unless such settlement includes an unconditional
release of such Indemnitee from all liability on any claims that are the subject
matter of such action. No Indemnifying Party shall be liable under
this section for any settlement of any claim or action effected without their
prior written consent, which shall not be unreasonably
withheld. Notwithstanding the foregoing, in case any action is
brought against an Indemnitee in which the Seller, the Servicer or the Trust
is
a defendant, and such Indemnitee shall have concluded that there may be legal
defenses available to it that are different from or additional to those
available to the Seller, the Servicer or the Trust, such Indemnitee shall have
the right to select and, at its own expense, retain separate counsel to assert
such legal defenses and to otherwise participate in the defense.
10
SECTION
2.8 Increased
Cost, Reduced Return and Taxes.
(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), 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; or
(C) shall
impose any other condition affecting any Class C Certificates owned or funded
in
whole or in part by any Funding Source, or its obligations or rights, if any,
to
fund the Class C Investor Interest;
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 C Investor Interest, any
purchases, reinvestments, or loans or other extensions of credit under the
Liquidity Agreement or any Credit 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
the Liquidity Agreement or the Credit 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 Trust
shall pay to the applicable Structured Holder solely from Available Amounts
available therefor in accordance with Section 2.2(b) 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 2.8(a)
shall not apply to Taxes. For the avoidance of doubt, any
interpretation of Accounting Research Bulletin No. 51 by the Financial
Accounting Standards Board (including Interpretation of No.
46: Consolidation of Variable Entities) shall constitute an adoption,
change, request or directive subject to this Section 2.8(a).
(b) Each
Funding Source will promptly notify the applicable Structured Holder and the
Seller of any event of which it has knowledge which will entitle such Funding
Source to
11
compensation
pursuant to this Section 2.8; 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 2.8, 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 2.8 shall submit to the
applicable Structured Holder 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) Each
Structured Holder agrees that it shall use its reasonable best efforts to take
any action that will avoid the need to pay, or will reduce the amount of, any
increased amounts referred to in paragraph (a) and agrees that the
Servicer may require such Structured Holder to replace a Funding Source if
there
arises any obligation to make any payments to such Funding Source pursuant
to
this Section 2.8; provided that a Structured Holder shall not
be obligated to take any actions that would, in the reasonable opinion of such
Structured Holder, be disadvantageous to such Structured Holder and shall not
be
required to replace any Funding Source unless such replacement Funding Source
is
reasonably acceptable to such Structured Holder.
(e) Subject
to Section 2.8(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 a Structured Holder, (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 2.8(e)), such Foreign Funding Source receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Trustee shall make such deductions and (iii) the Trustee shall pay the
full amount deducted to the relevant taxation authority or other authority
in
accordance with applicable law solely from Available Amounts available therefor
in accordance with Section 2.2.
(f) Each
Foreign Funding Source that is an assignee or participant of a Structured
Holder, on or prior to the date pursuant to which it becomes an assignee or
participant of the such Structured Holder, 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 such Structured Holder hereunder), shall provide
Seller and the Trustee with Internal Revenue Service Form W-8BEN or W-8ECI,
as
appropriate, or any successor form 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 a Structured Holder has failed to provide the Seller with the
appropriate form
12
described
in Section 2.8(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 2.8(e).
ARTICLE
III
Representations
and Warranties of Seller and Servicer
SECTION
3.1 Representations
and Warranties of the Servicer. Spirit, Inc., as Servicer, hereby
represents and warrants to each of the Initial Class C Holders 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 Transaction 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, except
in
each case where the failure to do so would not individually or in the aggregate
have a material adverse effect on the Class C Certificates.
(c) Due
Authorization. The execution and delivery by the Servicer of this
Agreement and each other Transaction 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 Transaction 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 Transaction Document to which the Servicer
is a
party has been duly executed and delivered by the Servicer and 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 Transaction 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 Transaction 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
13
not
conflict with or violate in any material respect any Requirements of Law
applicable to the Servicer.
(g) No
Proceedings. There are no actions, investigations or 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 Transaction 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 Transaction 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 Transaction 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 Transaction 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 Transaction 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) Financial
Statements. The Servicer has delivered to each of the Initial
Class C Holders complete and correct copies of the audited consolidated
balance sheet and audited consolidated statement of income of Charming Shoppes,
Inc. for the fiscal year ended February 4, 2007.
(k) No
Adverse Change. There has not been any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer since the date of its formation.
(l) Trust
Indenture Act; Investment Company Act. Neither the Pooling and
Servicing Agreement nor the Supplement is required to be qualified under the
Trust Indenture Act of 1939, and the Trust is not required to be registered
under the Investment Company Act of 1940, as amended.
(m) No
Early Amortization Event, Insolvency Event or Servicer
Default. No Early Amortization Event with respect to the Series
2007-1 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 such
an
Early Amortization Event, Insolvency Event or Servicer Default.
(n) Reports. No
report, statement, exhibit or other written information required to be furnished
by the Servicer or any of its Affiliates, agents or representatives to the
Class C Holders pursuant to this Agreement, the Pooling and Servicing
Agreement or the Supplement is or shall
14
be
inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact or any
fact necessary to make the statements contained therein not misleading, in
each
case, as of the date it is or shall be dated or (except as otherwise disclosed
to the Class C Holders at such time) as of the date so
furnished.
SECTION
3.2 Representations
and Warranties of the Seller. CSRC, as Seller, hereby represents
and warrants to each of the Initial Class C Holders 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 Transaction 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, except
in
each case where the failure to do so would not individually or in the aggregate
have a material adverse effect on the Class C Certificates.
(c) Due
Authorization. The execution and delivery by the Seller of this
Agreement and each other Transaction Document to which it is a party 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 Transaction Document to which it is a party will
remain, from the time of its execution, an official record of the
Seller.
(d) Enforceability. Each
of this Agreement and each other Transaction Document to which the Seller is
a
party has been duly executed and delivered by the Seller and 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 Transaction Document to which the Seller 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 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 Transaction Document to which the Seller 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 Seller.
(g) No
Proceedings. There are no actions, investigations or proceedings
pending or, to the best knowledge of the Seller, threatened against the Seller
before any court, regulatory
15
body,
administrative agency, or other tribunal or governmental instrumentality
(i) asserting the invalidity of this Agreement or any other Transaction
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 Transaction
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 Transaction
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 Transaction 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 Seller of this
Agreement and each other Transaction 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 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) Trust
Indenture Act; Investment Company Act. Neither the Pooling and
Servicing Agreement nor the Supplement is required to be qualified under the
Trust Indenture Act of 1939, and the Trust is not 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
2007-1 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) No
Adverse Change. There has not been any material adverse change in
the business, operations, financial condition, properties or assets of the
Seller since the fiscal year ended February 4, 2007.
(m) Class
C Certificates. The Class C 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, the Supplement and this Agreement.
(n) Securities
Laws. Based upon, among other things, the representations and
warranties of each of the Initial Class C Holders hereunder, the sale of the
Class C Certificates pursuant to the terms of this Agreement, the Pooling
and Servicing Agreement and the Supplement will not require the registration
of
such Class C Certificates under the Securities Act of 1933, as
amended.
16
ARTICLE
IV
Conditions
Precedent
Sections
4.1 through 4.10 constitute conditions precedent to the obligation of
each of the Initial Class C Holders to purchase the Class C Certificates on
the Closing Date.
SECTION
4.1 Representations
and Warranties. On the Closing Date and after giving effect to
the issuance of the Series 2007-1 Certificates, all representations and
warranties of the Seller and the Servicer contained herein or in the Purchase
Agreement and the Pooling and Servicing Agreement or otherwise made in writing
pursuant to any of the provisions hereof or thereof shall be true and correct
in
all material respects with the same force and effect as though such
representations and warranties had been made on and as of such date (unless
such
representations and warranties specifically relate to an earlier
date).
SECTION
4.2 Documents. Each
of the Initial Class C Holders shall have received an executed copy of each
document set forth in Schedule II hereto (including reliance letters (if such
Initial Class C Holder is not included as an addressee) on all opinions
delivered to the Rating Agencies).
SECTION
4.3 Related
Agreements. Each of the Initial Class C Holders shall have
received copies of each of the Class C Purchase Agreement, the Purchase
Agreement, the Pooling and Servicing Agreement and the Supplement (which shall
be satisfactory to each of the Initial Class C Holders), duly executed by
the parties thereto.
SECTION
4.4 Accountants’
Letter. Each of the Initial Class C Holders shall have
received a copy of the letter of Ernst & Young, delivered with respect to
the offering memorandum for the Series 2007-1 Certificates upon execution of
an
access letter by each of the Initial Class C Holders in form and substance
reasonably satisfactory to Ernst & Young.
SECTION
4.5 Certificate
Issuance. On or prior to the Closing Date (i) all Series 2007-1
Certificates shall have been duly executed and authenticated and delivered
in
accordance with Section 6.2 of the Pooling and Servicing Agreement, (ii)
the Class C Certificates shall have been delivered to each of the Initial
Class C Holders in accordance with the terms hereof, and (iii) the Class A
Certificates, Class M Certificates and Class B Certificates shall have been
sold
pursuant to the Senior Certificate Purchase Agreement.
SECTION
4.6 Officer’s
Certificates. On the Closing Date, each of the Initial
Class C Holders shall have received from the Seller and the Servicer, as
applicable, a certificate of (a) an Assistant Secretary of the Seller or the
Servicer, as the case may be, attaching a copy of the resolutions of the Board
of Directors of such Person, authorizing the execution, delivery and performance
of this Agreement and the other Transaction Documents to which the Seller or
the
Servicer, as applicable, is a party, and as to the incumbency of certain
officers of the Seller or the Servicer, as applicable, authorized to execute
this Agreement and the other Transaction Documents to which such Person is
a
party, and (b) an authorized officer of each of the Seller and the Servicer
as
to the fulfillment of the condition set forth in Section 4.1 (as the
same relates to such Person).
17
SECTION
4.7 Spread
Account. On the Closing Date, each of the Initial Class C Holders
shall have received from the Trustee satisfactory evidence of the establishment
of the Class C Spread Account.
SECTION
4.8 Certificate
Rating. On the Closing Date, each of the Initial Class C
Holders shall have received evidence reasonably satisfactory to it that the
Class A Certificate will be rated in the highest rating category by at least
one
nationally recognized rating agency, the Class M Certificates will be rated
at
least “AA” by at least one nationally recognized rating agency , the Class B
Certificates will be rated at least “A” by at least one nationally recognized
rating agency and the Class C Certificates will be rated at least “Baa2” or its
equivalent by at least one of Standard & Poor’s or Xxxxx’x.
SECTION
4.9 The
Trustee. Each of the Initial Class C Holders shall have
received a certificate from the Trustee, in form and substance reasonably
satisfactory to it covering the incumbency and specimen signatures of its
officers executing such documents.
SECTION
4.10 Additional
Documents. Each of the Initial Class C Holders shall have
received such additional certificates, letters or opinions as it or its counsel
may reasonably request.
ARTICLE
V
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
5.1 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 communication received by or on behalf of Seller or Servicer with respect
to the Series 2007-1 Certificates, this Agreement, the Pooling and Servicing
Agreement or the Supplement.
SECTION
5.2 Monthly
Status Reports. Furnish to each Class C Holder (or cause to be
furnished to each Class C Holder), two Business Days prior to each Distribution
Date information relating to distributions of Available Amounts and amounts
on
deposit in the Class C 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 the Class C Spread
Account furnished by the Trustee).
SECTION
5.3 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.
18
SECTION
5.4 Reassignment
of Certificates. Not effect a reassignment of the Series 2007-1
Certificates pursuant to Section 12.2 of the Pooling and Servicing
Agreement and Section 4 of the Supplement unless the Class C Investor
Interest and all other amounts owing to the Class C Holders hereunder and
under the Supplement shall have been paid in full.
SECTION
5.5 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
5.6 Seller
Financial Information; Other Information; Confidentiality.
(a) Furnish
to the Class C Holders (or in the case of clause (ii) cause the Trustee to
furnish) (i) no later than 45 days following the end of each quarter, in the
case of the Originator, its call report for such quarterly period, and in any
other case, such other publicly available financial information, if any, as
to
the Originator, Spirit, Inc., Charming Shoppes, Inc., CSRC or the Receivables
as
the Required Class C Holders may reasonably request, (ii) a copy of each
report prepared under Section 3.6(b) of the Pooling and Servicing
Agreement, and (iii) notice of the occurrence of any Early Amortization Event
with respect to the Series 2007-1 Certificates. All such information
acquired by a Class C Holder hereunder shall be kept confidential to the extent
provided in Section 6.1(b).
(b) Use
reasonable efforts to cause all information provided to any Class C Holder
pursuant to this Agreement, the Pooling and Servicing Agreement or the
Supplement, or in connection with any action required or permitted to be taken
hereunder or thereunder, to be complete and accurate in all material
respects.
SECTION
5.7 Class
C Holders’ Identities. Maintain as confidential and not disclose
to any Person (other than any officer, employee, agent, counsel, advisor, Rating
Agency or representative of a party hereto or any underwriter of the Series
2007-1 Certificates or its counsel) the pricing terms of this Agreement or
the
identify of any Class C Holder, except as such Class C Holder may have consented
to in writing prior to any proposed disclosure or except as the Servicer, CSRC
or the Originator 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; provided,
however, that in any such instance, the Servicer or the Seller, as
applicable, shall notify such Class C Holder of its intention to make any
such disclosure prior to making such disclosure.
SECTION
5.8 Amendments
and Modifications. (a) Not amend, waive or otherwise
modify the provisions of the Supplement or any Interest Rate Hedge Agreement,
or
the performance of any of the terms thereof, unless the Class C Holders
have consented in writing to such amendment, waiver or modification, which
consent shall not be unreasonably withheld or delayed.
19
(b) In
addition to the restrictions set forth in Section 13.1 of the
Pooling and Servicing Agreement and subject to the requirements set forth in
paragraph (d) below, not amend the Pooling and Servicing Agreement without
the
prior written consent of the Class C Holders (which consent shall not be
unreasonably withheld or delayed) unless such amendment shall not, as evidenced
by an Opinion of Counsel for the Seller addressed to the Trustee and the Class
C
Holders, adversely affect in any material respect the interests of the
Class C Holders. For the avoidance of doubt, the following
actions shall not require the consent of the Class C Holders:
(1)
|
the
issuance of a new Series pursuant to and in accordance with the terms
of
the Pooling and Servicing
Agreement;
|
(2)
|
the
addition of Accounts, including Additional Accounts, pursuant to
Section 2.6 of the Pooling and Servicing Agreement;
provided that with respect to any designation of Additional
Accounts pursuant to Section 2.6(b) of the Agreement, the Seller
shall
have provided the Class C Holders with an Officer’s Certificate certifying
that such designation of Additional Accounts will not, as of the
related
Addition Date, (x) result in a reduction or withdrawal by either
Rating
Agency of its ratings for the Series 2007-1 Certificates, (y) cause
a
Series 2007-1 Early Amortization Event to occur or (z) be reasonably
expected by the Seller to materially adversely affect in any manner
the
timing or amount of payments to the Class C
Holders;
|
(3)
|
the
removal of Accounts pursuant to Section 2.7 of the Pooling and
Servicing Agreement; and
|
(4)
|
the
amendment of a supplement or receivables purchase agreement other
than the
Supplement.
|
(c) Not
increase the Series 2007-1 Investor Monthly Servicing Fee as contemplated by
Section 3 of the Supplement unless the Class C Holders have consented thereto,
which consent will not be unreasonably withheld or delayed.
(d) Unless
the Class C Holders have consented thereto (which consent shall not be
unreasonably withheld or delayed), not
|
(1)
|
increase
the Co-Brand Percentage designated by the Servicer as described in
the
definition of “Co-Brand Percentage” in the Pooling and Servicing
Agreement;
|
(2) designate
any Additional Account from any Acquired Portfolio;
|
(3)
|
designate
any Additional Account related to any brand name not identified by
name in
the definition of “Affiliated Brand” in the Pooling and Servicing
Agreement as of the date hereof (a “Non-Specified Account”) and
originated under a program of the Originator for originating receivables
primarily from women’s apparel sales from physical stores if, at the time
such Additional Account is designated as an Additional Account and
after
giving effect to such designation, the aggregate amount of Principal
Receivables arising in such Accounts as of the related Addition Cut-Off
Date exceeds 10% of the aggregate
|
20
Principal
Receivables in all Accounts as of the last day of the most recent Due Period;
and
|
(4)
|
designate
as Additional Accounts any Non-Specified Accounts originated under
a
program of the Originator for originating receivables primarily (A)
from
sales other than women’s apparel sales at physical stores or (B) from
sales through catalogs or e-commerce
websites.
|
SECTION
5.9 Trigger
Increase Event. Furnish to the Class C Holders, promptly
after the occurrence of any Trigger Increase Event, a certificate of an
appropriate officer of the Servicer setting forth the circumstances of such
Trigger Increase Event and any action taken or proposed to be taken by the
Servicer, if any, with respect thereto and furnish to the Class C Holders such
other information with respect to any such Trigger Increase Event as any
Class C Holder may reasonably request.
SECTION
5.10 Liens. Not
create, incur or otherwise permit to exist any mortgage, pledge, lien or other
encumbrance on the Class C Spread Account other than any interests of the Class
C Holders and the Holder of the Exchangeable Seller Certificate.
SECTION
5.11 Discount
Option Receivables. In the event that the Seller has given the
Trustee notice of the designation of Discount Option Receivables, not terminate
or discontinue or reduce such amount without the written consent of the
Class C Holders unless, on or prior to the date of such discontinuance or
reduction, the amount on deposit in the Class C Spread Account is equal to
the
Required Class C Spread Amount (determined as if no such discount is in
effect).
SECTION
5.12 Access. At
such reasonable times as the Class C Holders may notify the Seller and the
Servicer upon five Business Days’ notice in writing or by telephone during
normal business hours and at the expense of the Class C Holders, afford the
Class C Holders reasonable access to all records maintained by the Seller or
the
Servicer relating to the Receivables for purposes of inspection, to which
inspection the Trustee by its acceptance of this Agreement hereby
consents.
SECTION
5.13 Performance
of Agreements. For the benefit of the Class C Holders, perform
each of their respective agreements, representations, warranties, covenants
and
indemnities under, and comply in all material respects with each of the
respective terms and provisions applicable to it in, the Pooling and Servicing
Agreement and Supplement which are hereby incorporated by reference into this
Agreement as if set forth herein in full.
SECTION
5.14 Payments. Subject
to Section 2.6, timely make all payments, deposits or transfers and give
all instruction to transfer when required under the Pooling and Servicing
Agreement and the Supplement.
SECTION
5.15 Further
Actions. Execute and promptly deliver to the Class C Holders all
such documents and instruments and do all such other acts and things as may
be
necessary or reasonably required by the Class C Holders or the Trustee to enable
the Trustee or the Class C Holders to exercise and enforce their respective
rights under this Agreement, the Pooling Agreement, the Supplement and to
realize thereon, and the Seller shall record and file and re-record and refile
all such documents and instruments, at such time or times, in such manner
and
21
at
such
place or places, as may be necessary or reasonably required by the Trustee
or
the Class C Holders to validate, preserve, perfect and protect the position
of
the Trustee or the Class C Holders hereunder and under the Pooling and Servicing
Agreement and the Supplement and the Sellers and the Servicer shall maintain
each of such documents as part of its official records.
SECTION
5.16 Class D
Cancellation. Not cause any Class D Certificate to be
cancelled under Section 4.16 of the Supplement if, at the time of
such cancellation (or immediately after giving effect thereto), (i) an Early
Amortization Event has occurred and is continuing, or (ii) the Three Month
Excess Yield Percentage is less than 2%.
ARTICLE
VI
Representations,
Warranties and Covenants of the Initial Class C Holders and the
Trustee
SECTION
6.1 Representations,
Warranties and Covenants of the Class C Holders. (a) From
and after the date hereof, each Initial Class C Holder represents and
warrants (and covenants that the following representations and warranties
continue to be true and correct for as long as it shall continue to hold any
Class C Certificate) (and each other Class C Holder shall be deemed to
represent, warrant and covenant from and after 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 such Class C Certificate with a view to making
a
distribution thereof (within the meaning of the Securities Act);
(ii) either
(a) it is not acquiring such Class C Certificate (or any interest therein)
with
the assets of an “employee benefit plan” as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
that is subject to Title I of ERISA, a “plan” as defined in and subject to
Section 4975 of the Code, or an entity deemed to hold the plan assets of any
of
the foregoing (each, a “Benefit Plan Investor”) or (b) it is an insurance
company purchasing such Class C Certificate (or any interest therein) with
the
assets of its general account and, at the time of acquisition and throughout
the
period of holding, (1) it satisfies all of the conditions of Prohibited
Transaction Class Exemption 95-60; (2) less than 25% of the assets of the
general account are or represent assets of Benefit Plan Investors; and (3)
it is
not (i) the issuer, (ii) a person who has discretionary authority or control
with respect to the assets of the Trust or provides investment advice for a
fee
(direct or indirect) with respect to such assets, or (iii) any affiliate of
such
a person, and would not otherwise be disregarded under 29 C.F.R. Section
2510.3-101(f)(1).
If
such
Class C Holder is a non-U.S. or governmental plan, its acquisition, holding
and
disposition of such Class C Certificate (or any interest therein) will not
result in a non-exempt prohibited transaction under, or a violation of, any
applicable law that is substantially similar to the fiduciary responsibility
or
prohibited transaction provisions of ERISA or Section 4975 of the
Code.
22
(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 and is a U.S. Person (as defined in Section
7701(a)(30) of the Code).
(b) Each
Class C Holder covenants and agrees to maintain as confidential, not disclose
to
any Person (other than any officer, employee, agent, counsel, advisor or
representative of a party hereto) and not use for any purpose other than in
connection with this Agreement, all information acquired by such Class C Holder
that is not publicly available relating to the Trust, the Originator, the Seller
or the Servicer which it obtained in connection with the transactions
contemplated hereby, except (x) as the Trustee, the Seller, the Originator
or
the Servicer may have consented to in writing prior to any proposed disclosure,
(y) if such Class C Holder is a Structured Holder, such information may be
disclosed to Persons that hold subordinated notes issued by such Structured
Holder, and (z) 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, provided,
however, that in any such instance such Class C Holder will notify
the
Seller and the Servicer of its intention to make any such disclosure prior
to
making any such disclosure. Notwithstanding anything herein to the
contrary, (a) each of the parties to this Agreement (and each employee,
representative or other agent of such parties) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
of
the transaction and all materials of any kind (including opinions or other
tax
analyses) that are provided to such parties relating to such tax treatment
and
tax structure and (b) any Class C Holder may disclose information concerning
the
purchase or sale of the Class C Certificates by such Class C Holder to any
federal or state regulatory authority having jurisdiction over such Class C
Holder and the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access
to
information about such Class C Holder’s investment portfolio.
SECTION
6.2 Representations,
Warranties and Covenants of the Trustee. The Trustee represents,
warrants and covenants to each of the Initial Class C Holders
that:
(i) 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;
(ii) 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
(iii) This
Agreement has been duly executed and delivered by the Trustee and constitutes
its legal, valid and binding obligation in accordance with its
terms.
23
(iv) The
Trustee shall not amend, waive or otherwise modify any provisions of any
Interest Rate Hedge Agreement unless the Class C Holders have consented in
writing thereto (such consent not to be unreasonably withheld or
delayed).
ARTICLE
VII
Miscellaneous
SECTION
7.1 Amendments
and Waivers. This Agreement shall not be amended or modified
without the written consent of the Seller, the Trustee, the Servicer and the
Required Class C Holders. No waiver of, or consent to the departure
from, any provision of this Agreement 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 Class
C
Holders hereunder or modifying the definition of Required Class C Holders
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. Additionally, to the
extent that any Class C Holder is a Structured Holder, no action otherwise
permitted pursuant to this Section 7.1 shall be permitted unless each
rating agency then rating the outstanding Commercial Paper issued by such
Structured Holder shall have provided prior written confirmation that such
action would not cause such rating agency to reduce or withdraw its then current
rating of such Commercial Paper.
SECTION
7.2 Servicer
Transfer. In the event that a transfer of servicing occurs under
Article X of the Pooling and Servicing Agreement, from and after the
effective date of such transfer, the Successor Servicer appointed pursuant
to
the Pooling and Servicing Agreement, and not Spirit, Inc., shall be responsible
for the performance of all servicing functions to be performed by the Servicer
from and after such date, except as provided in the Pooling and Servicing
Agreement. Such transfer shall not affect any rights or obligations
of Spirit, Inc. which arose prior to the effective date of the transfer of
servicing or the rights or obligations of Spirit, Inc. under Sections
2.2, Section 2.7 and Article V (in the case of Sections
5.2 or 5.3 under Article V, excluding any documents received
by any Successor Servicer and also excluding any documents received by Spirit,
Inc. from the Successor Servicer), or Section 7.3 of this Agreement,
whether arising before or after such date.
SECTION
7.3 Fees
and Expenses. Each party shall pay all fees and expenses incurred
by it in connection with preparing and entering into this Agreement;
provided, however, that the Seller will reimburse each of the
Initial Class C Holders for its out-of-pocket expenses and shall directly pay
all reasonable legal fees and expenses and disbursements of its counsel
(including fees, expenses and disbursements of such counsel incurred in
connection with the preparation and execution of this Agreement) in an aggregate
amount not to exceed the Expense Cap. The Trust through the Trustee
(acting in accordance with instructions of the Servicer), but solely to the
extent funds are available therefor under Section 2.2(b), and the Seller
agree to pay on demand all reasonable costs and expenses of the Class C Holders
in connection with any amendment to, or any waiver requested under, this
Agreement, and of the Class C Holders in connection with the “work-out” or
enforcement of its rights under this Agreement or any of the other documents
delivered in connection herewith, including, without limitation, the reasonable
fees and out-of-pocket expenses of its legal counsel with respect
thereto.
24
SECTION
7.4 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
7.5 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
7.6 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
7.7 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 all other amounts payable
to the Class C Holders hereunder and under the Supplement and (ii) the Series
2007-1 Termination Date; provided that Sections 2.6, 2.7,
2.8, 7.10, 7.12 and 7.16 shall survive the
termination of this Agreement.
SECTION
7.8 Transfer
Restrictions. (a) Each of the Initial Class C Holders
shall deliver, on or prior to the Closing Date, to the Seller and the Trustee
a
purchaser representation letter substantially in the form attached hereto as
Exhibit B for such Initial Class C Holder and for each Funding Source
executing the Liquidity Agreement as a “Liquidity Bank” on the Closing
Date. Additionally, for so long as any Structured Holder is a Class C
Holder, such Structured Holder shall require each Funding Source that executes
a
Credit Agreement or Liquidity Agreement pursuant to which such Funding Source
agrees to purchase an interest in all or a portion of the Class C Investor
Interest from time to time to deliver to the Seller and the Trustee a purchaser
representation letter substantially in the form attached hereto as Exhibit
B for such Funding Source on or prior to the execution of such Credit
Agreement or Liquidity Agreement. No Class C Certificate may be
offered, sold or otherwise transferred to any Person (other than the Seller
or a
State Street Related Party) unless (x) the Seller shall have been given an
opportunity to purchase such Class C Certificate in accordance with Section
7.8(c) and (y) if the Seller does not exercise its right to purchase
such Class C Certificate, 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 Person 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) 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 is a U.S. Person (as defined in
Section 7701(a)(30) of the Code) and shall have delivered to such
Class C Holder a purchaser representation letter
25
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.
(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
5
Private Holders of Class C Certificates and (ii) the other conditions to
transfer set forth in Section 6.3 of the Pooling Agreement and in
Section 16 of the Series 2007-1 Supplement to 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 State Street Related Party
(any such offering, sale or transfer being herein called a “Proposed
Transfer”), such Class C Holder shall give the Seller not less than ten days
prior written notice of the Proposed Transfer. Such notice shall
include the proposed date of transfer, the Person or Persons to which such
transfer will be made, and all other material terms of the Proposed Transfer
(other than the purchase price). During the period of five Business
Days following the Seller’s receipt of such notice, the Seller shall be entitled
to notify such Class C Holder that the Seller will acquire such Class C
Certificate on the terms set forth in such notice and at a price acceptable
to
such Class C Holder in its sole discretion. Such acquisition will
occur on or before the date specified for the Proposed Transfer in such notice,
and each Class C Holder hereby agrees, subject to acceptance of the purchase
price therefor, to transfer such Class C Certificate to the Seller on the terms
set forth in any such notice sent by it. If the Seller does not
notify such Class C Holder of its intent to acquire such Class C Certificate
within such five Business Day period, it will be deemed to have elected not
to
so acquire such Class C Certificate.
SECTION
7.9 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 the Initial Class
C
Holders, as set forth below:
Clipper
Receivables Company, LLC
c/o
State
Street Global Markets, LLC, as Program Administrator
0
Xxxxxxx
Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000-0000
Attention: Clipper
Receivables Department
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
26
Galleon
Capital, LLC
c/o
State
Street Global Markets, LLC as Program Administrator
0
Xxxxxxx
Xxxxxx, Xxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000-0000
Attention: Clipper
Receivables Department
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If
such
notice is to any subsequent Class C Holder, such notice shall be given in
accordance with the terms of the Pooling and Servicing Agreement.
All
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
7.10 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
7.11 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
7.12 Limitation
of Remedies. (a) 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 set forth in Section
2.2 hereof and shall not attempt to exercise any of its rights hereunder
with respect to Available Amounts or amounts on deposit in the Class C Spread
Account prior to such due date or Distribution Date.
(b) The
obligations of each Class C Holder under this Agreement, or any other agreement,
instrument, document or certificate executed and delivered by or issued by
such
Class C Holder or any officer thereof are solely the corporate obligations
of such Class C Holder. 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 Class C Holder or any officer thereof in
connection therewith, against any stockholder, employee, officer, director
or
incorporator of such Class C Holder.
SECTION
7.13 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.
27
SECTION
7.14 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
7.15 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
7.16 Nonpetition
Agreement. (a) 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.
(b) Notwithstanding
any prior termination of this Agreement, none of the Seller, the Servicer nor
the Trustee shall acquiesce, petition or otherwise invoke or cause any
Structured Holder to invoke the process of any governmental authority for the
purpose of commencing or sustaining a case against such Structured Holder under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator of other
similar official of such Structured Holder or any substantial part of its
property or ordering the winding up or liquidation of the affairs of such
Structured Holder until the date which is one year and one day after the latest
maturing Commercial Paper issued by such Structured Holder have been
paid.
SECTION
7.17 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. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE CLASS C HOLDERS PURCHASING THE CLASS C CERTIFICATES DESCRIBED
HEREIN.
28
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
|
By:________________________________
|
Name:
|
Title:
|
S-1
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
|
By:____________________________________
|
Name:
|
Title:
|
S-2
CLIPPER
RECEIVABLES COMPANY, LLC,
|
as
a Class C Holder
|
By:______________________________________
|
Name:
|
Title:
|
GALLEON
CAPITAL, LLC,
|
as
a Class C Holder
|
By:______________________________________
|
Name:
|
Title:
|
S-3
SCHEDULE
I
Initial
Class C Holders
Names
of Initial Class C Holders
|
Principal
Amounts of Class C Certificates
|
Clipper
Receivables Company, LLC
|
$20,600,000
|
Galleon
Capital, LLC
|
$8,200,000
|
SCHEDULE
II
Conditions
Precedent
Each
of
the Initial Class C Holder’s obligation to purchase a Class C Certificate as
described in Section 2.1 will be subject to the delivery to such Class C Holder
of the following documents, which documents shall be in form and substance
reasonably satisfactory to such Class C Holder:
(a) An
opinion of Xxxxx X. Xxxxx, Esq., Executive Vice President and General Counsel
to
Charming, dated the Issuance Date and addressed to the Initial Class C Holders,
as to certain corporate matters.
(b) An
opinion of Xxxxx Xxxxx LLP, dated the Issuance Date and addressed to the Initial
Class C Holders, as to certain federal tax matters.
(c) An
opinion of Squire, Xxxxxxx & Xxxxxxx LLP, dated the Issuance Date and
addressed to the Initial Class C Holders, regarding certain Ohio tax
matters.
(d) An
opinion of Xxxxx Xxxxx LLP, dated the Issuance Date and addressed to the Initial
Class C Holders, as to enforceability and certain securities law
matters.
(e) An
opinion of Xxxxx Xxxxx LLP, dated the Issuance Date and addressed to the Initial
Class C Holders, to the effect that the transfer of Receivables from the Seller
to the Trust creates a perfected security interest in such Receivables in favor
of the Trustee.
(f) An
opinion of Squire, Xxxxxxx & Xxxxxxx LLP, dated the Issuance Date and
addressed to the Initial Class C Holders, to the effect that the transfer of
Receivables from Spirit of America to the Seller creates a perfected security
interest in such Receivables in favor of the Seller.
(g) An
opinion of Xxxxx Xxxxx LLP, dated the Issuance Date and addressed to the Initial
Class C Holders, with respect to (a) the nonconsolidation of Fashion Service
Corp. with the Seller and (b) certain FDIC matters relating to the transfer
of
the Receivables from Spirit of America to the Seller.
(h) A
Servicer Report dated as of the Issuance Date, calculated after giving effect
to
all transactions contemplated on the Issuance Date.
(i) Copies
of
each of the Class A Swap relating to Class A Certificates, the Class M Swap
relating to the Class M Certificates, the Class B Swap relating to the Class
B
Certificates and the Class C Cap relating to the Class C Certificates, duly
executed by the parties thereto.
EXHIBIT
A
to Certificate Purchase Agreement
CHARMING
SHOPPES MASTER TRUST SERIES 2007-1
DUE
PERIOD ENDING ______________
To
be in a form agreed by the Initial Class C Holders, and the
Servicer.
|
|
A-1
Exhibit
B
to
Certificate Purchase Agreement
FORM
OF
REPRESENTATION LETTER
U.S.
Bank
National Association
EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Charming
Shoppes Receivables Corp.
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxx 00000
|
Re:
|
Purchase
of $[__________] principal amount of Charming
Shoppes
|
|
Master
Trust Series 2007-1 Floating Rate Asset Backed Certificates, Class
C
|
Ladies
and Gentlemen:
Reference
is made to that certain Class C Certificate Purchase Agreement, dated as of
October 17, 2007 (the “Class C CPA”), among U.S. Bank National
Association, as Trustee, Charming Shoppes Receivables Corp. (“CSRC”), as
Seller, Spirit of America, Inc., as Servicer and the Class C Holders described
therein. In connection with our purchase of the above Asset Backed
Certificates (the “Certificates”), 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 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 Certificates and will not transfer our Certificates
(or any portion
|
B-1
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 believe is a QIB that is
purchasing (i) for its own account or (ii) 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 (a) not acquiring such Certificates (or interest therein)
with
the assets of an “employee benefit plan” as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is subject to Title I of ERISA, a “plan” as defined
in and subject to Section 4975 of the Code, or an entity deemed to
hold
the “plan assets” of any of the foregoing (each, a “Benefit Plan
Investor”) or (b) an insurance company purchasing the Certificates (or
interest therein) with the assets of our general account and, at
the time
of acquisition and throughout the period of holding, (1) we satisfy
all of
the conditions of Prohibited Transaction Class Exemption 95-60; (2)
less
than 25% of the assets of the general account are or represent assets
of
Benefit Plan Investors; and (3) we are not (i) the issuer, (ii) a
person
who has discretionary authority or control with respect to the assets
of
the Trust or provides investment advice for a fee (direct or indirect)
with respect to such assets, or (3) any affiliate of such a person,
and
would not otherwise be disregarded under 29 C.F.R. Section
2510.3-101(f)(1). If we are a non-U.S. or governmental plan,
our acquisition, holding and disposition of the Certificates (or
interest
therein) will not result in a non-exempt prohibited transaction under,
or
a violation of, any applicable law that is substantially similar
to the
fiduciary responsibility or prohibited transaction provisions of
ERISA or
Section 4975 of the Code.
|
|
(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 and a U.S. Person (as defined in Section
7701(a)(30) of the Code);
|
|
(9)
|
we
covenant and agree to maintain as confidential, not disclose to any
Person
(other than any officer, employee, agent, counsel, advisor or
representative of a party hereto), and not use for any purpose other
than
in connection with this Agreement, all information acquired by us
that is
not publicly available relating to the Trust, the Seller, the Originator
or the Servicer which we obtained in connection with the transactions
contemplated hereby, except (A) as the Trustee, the Seller or the
Servicer
may have consented to in writing prior to any proposed disclosure,
(B) as
we 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, provided in each such
instance we will notify the Seller and the Servicer of our intention
to
make any such disclosure prior to making such disclosure; and
providedfurther that we
may
|
B-2
disclose
to any and all persons the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to us relating to such tax treatment and tax structure and such
information concerning the purchase or sale of the Class C Certificates as
we
may be required to disclose to any federal or state regulatory authority having
jurisdiction over us and the National Association of Insurance Commissioners
or
any similar organization, or any nationally recognized rating agency that
requires access to information about our investment portfolio;
|
(10)
|
we
understand that any sale or other transfer of the Class C Certificates
will be subject to the additional transfer restrictions and the notice
requirements as described in the Class C CPA and acknowledge that
we have
received a copy of the Class C CPA;
|
|
(11)
|
we
are not acquiring, and will not sell or otherwise transfer, any Class
C
Certificates through (i) an “established securities market” within the
meaning of section 7704(b)(1) of the Code, and any proposed, temporary
or
final treasury regulation thereunder, including, without limitation,
an
over-the-counter-market or an interdealer quotations system that
regularly
disseminates firm buy or sell quotations or (ii) a “secondary market” or
“substantial equivalent thereof” within the meaning of section 7704(b)(1)
of the Code, 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 interests in the Trust and stands ready to effect
buy or
sell transactions at the quoted prices for itself or on behalf of
others;
|
|
(12)
|
we
are not a competitor of CSRC or any Affiliate of CSRC; it being understood
that for purposes of the foregoing certification, a “competitor” means a
Person, or Affiliate thereof, engaged in any of the same businesses
as the
businesses conducted by CSRC or its Affiliates; but notwithstanding
the
foregoing, the term “competitor” shall not include any bank, trust
company, savings and loan association or other financial institution,
any
investment company, any insurance company, any broker or dealer,
or any
other similar financial institution or entity, regardless of legal
form,
unless, in any such case, such Person, or affiliate thereof, is engaged
in
the business of issuing and owning retail private label credit card
programs; and
|
|
(13)
|
we
understand that the Certificates will bear a legend to substantially
the
following effect:
|
“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
B-3
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.
BY
ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE WILL BE DEEMED TO REPRESENT, WARRANT AND COVENANT THAT EITHER (I)
IT
IS NOT ACQUIRING THIS CERTIFICATE (OR INTEREST HEREIN) WITH THE ASSETS OF (A)
AN
“EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), THAT IS SUBJECT TO TITLE I OF
ERISA, (B) A “PLAN” AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR (C) AN ENTITY DEEMED TO HOLD
THE PLAN ASSETS OF ANY OF THE FOREGOING (EACH, A “BENEFIT PLAN INVESTOR”) OR
(II) IT IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE (OR INTEREST HEREIN)
WITH THE ASSETS OF ITS GENERAL ACCOUNT AND, AT THE TIME OF ACQUISITION AND
THROUGHOUT THE PERIOD OF HOLDING, (A) IT SATISFIES ALL OF THE CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60; (B) LESS THAN 25% OF THE ASSETS
OF
THE GENERAL ACCOUNT ARE OR REPRESENT ASSETS OF BENEFIT PLAN INVESTORS; AND
(C)
IT IS NOT (1) THE ISSUER, (2) A PERSON WHO HAS DISCRETIONARY AUTHORITY OR
CONTROL WITH RESPECT TO THE ASSETS OF THE TRUST OR PROVIDES INVESTMENT ADVICE
FOR A FEE (DIRECT OR INDIRECT) WITH RESPECT TO SUCH ASSETS, OR (3) ANY AFFILIATE
OF SUCH A PERSON, AND WOULD NOT OTHERWISE BE DISREGARDED UNDER 29 C.F.R. SECTION
2510.3-101(F)(1).
BY
ACQUIRING THIS CERTIFICATE (OR ANY INTEREST HEREIN), EACH PURCHASER AND
TRANSFEREE THAT IS A NON-U.S. OR GOVERNMENTAL PLAN WILL BE DEEMED TO REPRESENT,
WARRANT AND COVENANT THAT ITS ACQUISITION, HOLDING AND DISPOSITION OF THIS
CERTIFICATE (OR INTEREST HEREIN) WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER, OR A VIOLATION OF, ANY APPLICABLE LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION PROVISIONS
OF
ERISA OR SECTION 4975 OF THE CODE.
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) 5 PRIVATE HOLDERS OF CLASS C CERTIFICATES OR (II) 100
PRIVATE HOLDERS, OR (Y) ON OR
B-4
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 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 INTERESTS 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.
B-5
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-6
Annex
1
to Exhibit B
Qualified
Institutional Buyer Status Under SEC Rule 144A
(Buyers
other than investment companies)
U.S.
Bank
National Association
EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Attn:
[___________________]
Charming
Shoppes Receivables Corp.
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxx 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:
□
|
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.
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
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-7
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-8
Annex
2
to Exhibit B
U.S.
Bank
National Association
EP-MN-WS3D
00
Xxxxxxxxxx Xxxxxx
Xx.
Xxxx,
XX 00000
Charming
Shoppes Receivables Corp.
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxx 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.
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
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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.]3
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,
|
[Print
Name of Buyer]
|
By:__________________________________
|
Name:
|
Title:
|
On
behalf of:
|
[Name
of Buyer/Adviser]
|
3
Bracketed language
to be included only in Certification Forms from Buyers in connection with
re-sales pursuant to Rule 144A.
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