SERIES 2007-1 SUPPLEMENT Dated as of October 17, 2007 to SECOND AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT Dated as of November 25, 1997, as amended ______________________________ $320,000,000 CHARMING SHOPPES MASTER TRUST SERIES 2007-1
EXHIBIT
10.2
|
CHARMING
SHOPPES RECEIVABLES CORP.
Seller
SPIRIT
OF AMERICA, INC.
Servicer
and
U.S.
BANK NATIONAL ASSOCIATION
Trustee
on
behalf of the Series 2007-1 Certificateholders
|
|
______________________________
SERIES
2007-1 SUPPLEMENT
Dated
as of October 17, 2007
to
SECOND
AMENDED AND RESTATED POOLING AND
SERVICING
AGREEMENT
Dated
as of November 25, 1997, as amended
______________________________
|
|
$320,000,000
CHARMING
SHOPPES MASTER TRUST
SERIES
2007-1
|
|
TABLE
OF CONTENTS
|
||
|
Page
|
||
|
Designation
|
1
|
|
|
SECTION
2.
|
Definitions
|
2
|
|
SECTION
3.
|
Servicing
Compensation
|
32
|
|
SECTION
4.
|
Reassignment
and Transfer Terms
|
33
|
|
SECTION
5.
|
Delivery
and Payment for the Series 2007-1 Certificates
|
33
|
|
SECTION
6.
|
Depository;
Form of Delivery of Series 2007-1 Certificates
|
33
|
|
SECTION
7.
|
Interest
Rate Hedge Agreements
|
34
|
|
SECTION
8.
|
Article
IV of Agreement
|
34
|
|
SECTION
9.
|
Article
V of the Agreement
|
62
|
|
SECTION
10.
|
Series
2007-1 Early Amortization Events
|
64
|
|
SECTION
11.
|
Series
2007-1 Termination
|
66
|
|
SECTION
12.
|
Ratification
of Agreement
|
66
|
|
SECTION
13.
|
Counterparts
|
66
|
|
SECTION
14.
|
No
Petition
|
67
|
|
SECTION
15.
|
Forms
of Series 2007-1 Certificates
|
67
|
|
SECTION
16.
|
Transfer
Restrictions
|
68
|
|
SECTION
17.
|
Certain
Amendments
|
76
|
|
SECTION
18.
|
Commercial
Law Representations and Warranties of the Seller
|
76
|
|
SECTION
19.
|
Governing
Law
|
77
|
|
SECTION
20.
|
Third
Party Beneficiary
|
77
|
EXHIBITS
|
EXHIBIT
A-1
|
Form
of Class A-1 Certificate
|
|
EXHIBIT
A-2
|
Form
of Class A-2 Certificate
|
|
EXHIBIT
M-1
|
Form
of Class M-1 Certificate
|
|
EXHIBIT
M-2
|
Form
of Class M-2 Certificate
|
|
EXHIBIT
B-1
|
Form
of Class B-1 Certificate
|
|
EXHIBIT
B-2
|
Form
of Class B-2 Certificate
|
|
EXHIBIT
C
|
Form
of Class C Certificate
|
|
EXHIBIT
D-1
|
Form
of Class D-1 Certificate
|
|
EXHIBIT
D-2
|
Form
of Class D-2 Certificate
|
|
EXHIBIT
E
|
Form
of Monthly Payment Instructions and Notification to the
Trustee
|
|
EXHIBIT
F
|
Form
of Monthly Certificateholders’ Statement
|
|
EXHIBIT
G-1
|
Form
of Regulation S Book-Entry Certificate to Restricted Book-Entry
Certificate Transfer Certificate
|
|
TABLE
OF CONTENTS
|
|
|
EXHIBIT
G-2
|
Form
of Restricted Book-Entry Certificate to Regulation S Book-Entry
Certificate Transfer Certificate
|
|
EXHIBIT
H-1
|
Form
of Interest Rate Swap Agreement
|
|
EXHIBIT
H-2
|
Form
of Interest Rate Cap Agreement
|
|
EXHIBIT
I
|
Form
of Non-U.S. Beneficial Ownership Certification by Member
Organization
|
|
EXHIBIT
J
|
Form
of Non-U.S. Beneficial Ownership Certification by Euroclear or Clearstream
Banking, Société Anonyme
|
ii
This
SERIES 2007-1 SUPPLEMENT, dated as of October 17, 2007 (this
“Supplement”), is among CHARMING SHOPPES RECEIVABLES CORP., a Delaware
corporation, as Seller (the “Seller”), SPIRIT OF AMERICA, INC., a
Delaware corporation, as Servicer (the “Servicer”), and U.S. BANK
NATIONAL ASSOCIATION (as successor to Wachovia Bank, National Association),
as
Trustee (the “Trustee”) under the Second Amended and Restated Pooling and
Servicing Agreement dated as of November 25, 1997 and heretofore amended among
the Seller, the Servicer and the Trustee (as further amended or otherwise
modified from time to time, the “Agreement”).
Section
6.9 of the Agreement provides, among other things, that the Seller, the Servicer
and the Trustee may at any time and from time to time enter into a supplement
to
the Agreement for the purpose of authorizing the delivery by the Trustee to
the
Seller for the execution and redelivery to the Trustee for authentication of
one
or more Series of Certificates.
Pursuant
to this Supplement, the Seller and the Trustee shall create a new Series of
Investor Certificates and shall specify the Principal Terms
thereof.
SECTION
1. Designation.
(a) There
is
hereby created a Series of Investor Certificates to be issued in five classes
pursuant to the Agreement and this Series Supplement and to be known together
as
the Series 2007-1 Certificates. The five classes shall be designated
the Class A Asset Backed Certificates, Series 2007-1 (the “Class A
Certificates”), the Class M Asset Backed Certificates, Series 2007-1 (the
“Class M Certificates”), the Class B Asset Backed Certificates, Series
2007-1 (the “Class B Certificates”), the Class C Asset Backed
Certificates, Series 2007-1 (the “Class C Certificates”) and the Class D
Asset Backed Certificates, Series 2007-1 (the “Class D
Certificates”). The Class A Asset Backed Certificates shall be
comprised of two subclasses designated as the Class A-1 Asset Backed
Certificates, Series 2007-1 (the “Class A-1 Certificates”) and the Class
A-2 Asset Backed Certificates, Series 2007-1 (the “Class A-2
Certificates”). The Class M Asset Backed Certificates shall be
comprised of two subclasses designated as the Class M-1 Asset Backed
Certificates, Series 2007-1 (the “Class M-1 Certificates”) and the Class
M-2 Asset Backed Certificates, Series 2007-1 (the “Class M-2
Certificates”). The Class B Asset Backed Certificates shall be
comprised of two subclasses designated as the Class B-1 Asset Backed
Certificates, Series 2007-1 (the “Class B-1 Certificates”) and the Class
B-2 Asset Backed Certificates, Series 2007-1 (the “Class B-2
Certificates”). The Class D Asset Backed Certificates shall be
comprised of two subclasses designated as the Class D-1 Asset Backed
Certificates, Series 2007-1 (the “Class D-1 Certificates”) and the Class
D-2 Asset Backed Certificates, Series 2007-1 (the “Class D-2
Certificates”).
(b) Series
2007-1 shall be included in Group One. Series 2007-1 shall be a
Paired Series with respect to Series 2002-1.
(c) If
any
term or provision contained herein shall conflict with or be inconsistent with
any term or provision contained in the Agreement, the terms and provisions
of
this Supplement shall be controlling.
SECTION
2. Definitions. In
the event that any term or provision contained herein shall conflict with or
be
inconsistent with any provision contained in the Agreement, the terms and
provisions of this Supplement shall govern with respect to this
Series. All Article, Section or subsection references herein shall
mean Article, Section or subsections of the Agreement, except as otherwise
provided herein. All capitalized terms not otherwise defined herein
are defined in the Agreement. Each capitalized term defined herein
shall relate only to the Series 2007-1 Certificates and no other Series of
Certificates or Receivables Purchase Series issued by the Trust.
“Amortization
Period” shall mean, with respect to Series 2007-1, the Controlled
Amortization Period or the Early Amortization Period.
“Available
Funds” shall mean, with respect to any Distribution Date, the sum of
Class A Available Funds, Class M Available Funds, Class B Available
Funds, Class C Available Funds and Class D Available Funds, in each case for
such Distribution Date.
“Available
Principal Collections” shall mean, with respect to any Distribution Date,
the sum of:
|
|
(a)
|
(i)
with respect to any Distribution Date prior to the earlier to occur
of (A)
payment in full of the Series 2002-1 Certificates and (B) the end
of the
Funding Period, $0; and (ii) with respect to any other Distribution
Date,
the Principal Allocation Percentage of all Collections of Principal
Receivables received during the related Due Period, minus the
amount of Reallocated Class D Principal Collections, Reallocated
Class C
Principal Collections, Reallocated Class B Principal Collections
and
Reallocated Class M Principal Collections with respect to such Due
Period
which pursuant to Section 4.12 are required to fund the Class A Required
Amount, the Class M Required Amount, the Class B Required Amount
and the
Class C Required Amount,
|
|
|
(b)
|
any
Shared Principal Collections with respect to other Series in Group
One
that are allocated to Series 2007-1 in accordance with Section 4.15
for such Distribution Date,
|
|
|
(c)
|
any
other amounts which pursuant to subsections 4.9(a) and 4.11(a) (to
the
extent allocable to the Class A Investor Loss Amount or the Class
A
Investor Dilution Amount), (b), (c) (to the extent allocable to the
Class
M Investor Loss Amount or the Class M Investor Dilution Amount),
(d), (e)
(to the extent allocable to the Class B Investor Loss Amount or the
Class
B Investor Dilution Amount), (f), (i), (j), (k), (o), (p) and (q)
for such
Due Period (other than such amounts paid from Reallocated Principal
Collections) are to be treated as Available Principal Collections
for such
Distribution Date, and
|
|
|
(d)
|
the
amount, if any, specified by the Holder of the Exchangeable Seller
Certificate pursuant to the first proviso to subsection 4.5(b)(ii)
to be
distributed as Available Principal Collections on such Distribution
Date.
|
2
“Average
Principal Balance” shall mean, for any Due Period in which one or more Reset
Dates occur, the weighted average of the Principal Receivables on the first
day
of each Subperiod in such Due Period, it being understood that such average
will
be weighted according to a fraction, the numerator of which is the number of
days during the relevant Subperiod and the denominator of which is the number
of
days in such Due Period.
“Base
Rate” shall mean, for any Due Period, an annualized percentage equivalent of
a fraction, the numerator of which is equal to the sum of Monthly Interest
and
any Net Swap Payment for the related Distribution Date and the Series 2007-1
Investor Monthly Servicing Fee for such Due Period, and the denominator of
which
is equal to the outstanding principal amount of the Series 2007-1 Certificates,
determined as of the last day of the immediately preceding Due Period (or,
for
the initial Due Period, the outstanding principal amount of the Series 2007-1
Certificates as of the Closing Date).
“Benefit
Plan Investor” shall have the meaning specified in subsection 16(c)(vii) of
this Supplement.
“Cash
Pre-Funded Amount” shall mean the amount on deposit in the Pre-Funding
Account from time to time, excluding any investment income on funds on deposit
therein.
“Class”
shall mean any of the Class A Investor Interest, the Class M Investor
Interest, the Class B Investor Interest, the Class C Investor Interest or
the Class D Investor Interest.
“Class
A Additional Interest” shall mean the sum of the Class A-1 Additional
Interest and the Class A-2 Additional Interest.
“Class
A Available Funds” shall mean, with respect to any Distribution Date, an
amount equal to the sum of (a) the Class A Floating Allocation of the
Collections of Finance Charge Receivables allocated to the Series 2007-1
Certificates and deposited in the Collection Account for the related Due Period
(including amounts under Sections 4.19(c) and 4.20(b) and other amounts that
are
in each case to be treated as Collections of Finance Charge Receivables in
accordance with the Agreement (other than the Class A Net Swap Receipt)) and
(b)
any Class A Net Swap Receipt for such Distribution Date.
“Class
A Certificate Rate” means the Class A-1 Certificate Rate or the Class A-2
Certificate Rate, as applicable.
“Class
A Certificateholder” shall mean each Person in whose name a Class A
Certificate is registered in the Certificate Register.
“Class
A Certificates” shall have the meaning specified in subsection 1(a) of this
Supplement.
“Class
A Controlled Amortization Amount” for any Due Period related to the
Controlled Amortization Period shall mean $26,400,000.00; provided, however,
that such amount shall be adjusted downward to reflect (i) any reduction to
the
Class A Investor Interest as a result of any cancellation of Class A
Certificates pursuant to Section 4.16 and (ii) any principal payments to the
Class A Certificateholders pursuant to subsection 4.9(h), so that such amount
shall be equal
3
to
1/8th
of the outstanding principal amount of the Class A Certificates as of the last
day of the Due Period prior to the commencement of the Controlled Amortization
Period.
“Class
A Controlled Amortization Shortfall” shall mean (i) with respect to the
first Due Period related to the Controlled Amortization Period, zero, and (ii)
with respect to each other Due Period during the Controlled Amortization Period
occurring on or prior to the Class A Expected Final Payment Date, the excess,
if
any, of the Class A Controlled Payment Amount for the previous Due Period over
the amount of Available Principal Collections distributed as payment of such
Class A Controlled Payment Amount on the Distribution Date related to such
previous Due Period.
“Class
A Controlled Payment Amount” for any Due Period, shall mean, the sum of (a)
the Class A Controlled Amortization Amount and (b) any existing Class A
Controlled Amortization Shortfall.
“Class
A Deficiency Amount” shall mean the sum of the Class A-1 Deficiency Amount
and the Class A-2 Deficiency Amount.
“Class
A Expected Final Payment Date” shall mean the November 2012 Distribution
Date.
“Class
A Fixed Allocation” shall mean, with respect to any Due Period other than a
Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class A Investor Interest as of the close of business on the last day of the
Revolving Period and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
A Floating Allocation” shall mean, with respect to any Due Period (including
any day within such Due Period), the percentage equivalent (which percentage
shall never exceed 100%) of a fraction:
(a) the
numerator of which is the Class A Investor Interest as of the close of business
on the last day of the preceding Due Period (or with respect to the first Due
Period ending after the Closing Date, the Class A Investor Interest as of the
Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
A Initial Investor Interest” shall mean the aggregate initial principal
amount of the Class A Certificates, which is
$211,200,000. $153,800,000 of such initial principal amount is
allocated to the Class A-1 Certificates. $57,400,000 of such initial
principal amount is allocated to the Class A-2 Certificates.
“Class
A Investor Allocation” shall mean, with respect to any Due Period, (a) with
respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor Dilution
Amount and
4
Collections
of Finance Charge Receivables at any time and Collections of Principal
Receivables during the Revolving Period, the Class A Floating Allocation and
(b) with respect to Collections of Principal Receivables during the
Controlled Amortization Period or Early Amortization Period, the Class A Fixed
Allocation.
“Class
A Investor Charge-Off” shall have the meaning specified in
subsection 4.10(a).
“Class
A Investor Dilution Amount” shall mean, for any Distribution Date, an amount
equal to the product of (a) the Series 2007-1 Investor Dilution Amount for
such
Distribution Date and (b) the Class A Floating Allocation for the related Due
Period.
“Class
A Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class A
Initial Investor Interest, minus (b) the aggregate amount of principal
payments made to Class A Certificateholders prior to such date (other than
any
principal payment made pursuant to subsection 4.9(h)), minus (c) the
excess, if any, of the aggregate amount of Class A Investor Charge-Offs pursuant
to subsection 4.10(a) over Class A Investor Charge-Offs reimbursed pursuant
to
subsection 4.11(b) prior to such date of determination, minus (d) the
amount of any reduction to the Class A Investor Interest as a result of the
purchase by the Seller and subsequent cancellation of the Class A Certificates
pursuant to Section 4.16, minus (e) the Class A Percentage of the Initial
Total Pre-Funded Amount, plus (f) the Class A Percentage of the amount of any
increases to the Series Investor Interest pursuant to Section 4.21 during the
Funding Period. The Class A Investor Interest shall be allocated to
each subclass of the Class A Certificates proportionately according to the
outstanding principal amount thereof.
“Class
A Investor Loss Amount” shall mean, with respect to each Distribution Date,
an amount equal to the product of (a) the Investor Loss Amount for the related
Due Period and (b) the Class A Floating Allocation applicable for the related
Due Period.
“Class
A Monthly Interest” shall mean the sum of the Class A-1 Monthly
Interest and the Class A-2 Monthly Interest.
“Class
A Monthly Principal” shall mean the monthly principal distributable in
respect of the Class A Certificates as calculated in accordance with subsection
4.7(a).
“Class
A Net Swap Payment” shall mean, for any Distribution Date, the net amount
payable by the Trust to the Hedge Counterparty pursuant to the Class A Swap
on
that Distribution Date as a result of LIBOR being less than the Class A Swap
Rate. For the avoidance of doubt, Class A Net Swap Payments do not
include Hedge Termination Fees or payment of breakage or other miscellaneous
costs.
“Class
A Net Swap Receipt” shall mean, for any Distribution Date, the net amount
payable to the Trust from the Hedge Counterparty pursuant to the Class A Swap
on
that Distribution Date as a result of LIBOR being greater than the Class A
Swap
Rate.
“Class
A Percentage” shall mean a fraction, the numerator of which is the
Class A Initial Investor Interest and the denominator of which is the
Initial Investor Interest.
5
“Class
A Required Amount” shall have the meaning specified in
subsection 4.8(a).
“Class
A Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement.
“Class
A Swap” shall mean any Interest Rate Swap Agreement relating to the Class
A-1 Certificates.
“Class
A Swap Rate” shall mean 5.056% per annum.
“Class
A-1 Additional Interest” shall have the meaning specified in subsection
4.6(a).
“Class
A-1 Certificate Rate” shall mean, with respect to any Interest Period, a per
annum rate equal to LIBOR as of the related LIBOR Determination Date for such
Interest Period plus 1.25%.
“Class
A-1 Certificateholder” shall mean each Person in whose name a Class A-1
Certificate is registered in the Certificate Register.
“Class
A-1 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
A-1 Deficiency Amount” shall have the meaning specified in subsection
4.6(a).
“Class
A-1 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class A-1 Certificates as calculated in accordance with
subsection 4.6(a).
“Class
A-2 Additional Interest” shall have the meaning specified in subsection
4.6(b).
“Class
A-2 Certificate Rate” shall mean, with respect to any Interest Period, a
fixed per annum rate equal to 6.15%.
“Class
A-2 Certificateholder” shall mean each Person in whose name a Class A-2
Certificate is registered in the Certificate Register.
“Class
A-2 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
A-2 Deficiency Amount” shall have the meaning specified in subsection
4.6(b).
“Class
A-2 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class A-2 Certificates as calculated in accordance with
subsection 4.6(b).
“Class
B Additional Interest” shall mean the sum of the Class B-1 Additional
Interest and the Class B-2 Additional Interest.
“Class
B Available Funds” shall mean, with respect to any Distribution Date, an
amount equal to the sum of (a) the Class B Floating Allocation of the
Collections of Finance Charge Receivables allocated to the Series 2007-1
Certificates and deposited in the Collection Account
6
for
the
related Due Period (including amounts under Sections 4.19(c) and 4.20(b) and
other amounts that are in each case to be treated as Collections of Finance
Charge Receivables in accordance with the Agreement (other than the Class B
Net
Swap Receipt)) and (b) the Class B Net Swap Receipt for the related Distribution
Date.
“Class
B Certificate Rate” shall mean the Class B-1 Certificate Rate or the Class
B-2 Certificate Rate, as applicable.
“Class
B Certificateholder” shall mean each Person in whose name a Class B
Certificate is registered in the Certificate Register.
“Class
B Certificates” shall have the meaning specified in subsection 1(a) of this
Supplement.
“Class
B Controlled Amortization Amount” for any Due Period related to the
Controlled Amortization Period shall mean $30,400,000; provided, however, that
such amount shall be adjusted downward to reflect (i) any reduction to the
Class
B Investor Interest as a result of any cancellation of Class B Certificates
pursuant to Section 4.16 and (ii) any principal payments to the Class B
Certificateholders pursuant to subsection 4.9(h), so that such amount shall
be
equal to the outstanding principal amount of the Class B Certificates as of
the
last day of the Due Period prior to the commencement of the Controlled
Amortization Period.
“Class
B Controlled Amortization Shortfall” shall mean (i) with respect to the
first Due Period related to the Controlled Amortization Period occurring after
the Class M Expected Final Payment Date, zero, and (ii) with respect to each
other Due Period thereafter during the Controlled Amortization Period occurring
on or prior to the Class B Expected Final Payment Date, means the excess, if
any, of the Class B Controlled Payment Amount for the previous Due Period over
the amount of Available Principal Collections distributed as payment of such
Class B Controlled Payment Amount on the Distribution Date related to such
previous Due Period.
“Class
B Controlled Payment Amount” for any Due Period, shall mean, the sum of (a)
the Class B Controlled Amortization Amount and (b) any existing Class B
Controlled Amortization Shortfall.
“Class
B Deficiency Amount” shall mean the sum of the Class B-1 Deficiency Amount
and the Class B-2 Deficiency Amount.
“Class
B Expected Final Payment Date” shall mean the January 2013 Distribution
Date.
“Class
B Fixed Allocation” shall mean, with respect to any Due Period other than a
Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class B Investor Interest as of the close of business on the last day of the
Revolving Period, and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
B Floating Allocation” shall mean, with respect to any Due Period (including
any day within such Due Period), the percentage equivalent (which percentage
shall never exceed 100%) of a fraction:
7
(a) the
numerator of which is the Class B Investor Interest as of the close of business
on the last day of the preceding Due Period (or with respect to the first Due
Period ending after the Closing Date, the Class B Investor Interest as of the
Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
B Initial Investor Interest” shall mean the aggregate initial principal
amount of the Class B Certificates, which is $30,400,000. $16,900,000
of such initial principal amount is allocated to the Class B-1
Certificates. $13,500,000 of such initial principal amount is
allocated to the Class B-2 Certificates.
“Class
B Investor Allocation” shall mean, with respect to any Due Period (a) with
respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor Dilution
Amounts and Collections of Finance Charge Receivables at any time and
Collections of Principal Receivables during the Revolving Period, the Class
B
Floating Allocation and (b) with respect to Collections of Principal
Receivables during the Controlled Amortization Period or Early Amortization
Period, the Class B Fixed Allocation.
“Class
B Investor Charge-Off” shall have the meaning specified in
subsection 4.10(c).
“Class
B Investor Dilution Amount” shall mean, for any Distribution Date, an amount
equal to the product of (a) the Series 2007-1 Investor Dilution Amount for
such
Distribution Date and (b) the Class B Floating Allocation for the related Due
Period.
“Class
B Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class B
Initial Investor Interest, minus (b) the aggregate amount of principal payments
made to Class B Certificateholders prior to such date (other than any principal
payment made pursuant to subsection 4.9(h)), minus (c) the aggregate
amount of Class B Investor Charge-Offs for all prior Distribution Dates pursuant
to subsections 4.10(a), (b) and (c), minus (d) the aggregate amount
of Reallocated Class B Principal Collections allocated pursuant to subsection
4.12(b)(iv) on all prior Distribution Dates, minus (e) the amount of any
reduction to the Class B Investor Interest as a result of the purchase by the
Seller and subsequent cancellation of the Class B Certificates pursuant to
Section 4.16, minus (f) the Class B Percentage of the Initial Total Pre-Funded
Amount, plus (g) the Class B Percentage of the amount of any increases to
the Series Investor Interest pursuant to Section 4.21 during the Funding Period,
plus (h) the aggregate amount of Excess Spread and Shared Excess Finance
Charge Collections allocated and available on all prior Distribution Dates
pursuant to subsection 4.11(f) for the purpose of reimbursing amounts
deducted pursuant to the foregoing clauses (c) and (d). The Class B
Investor Interest shall be allocated to each subclass of the Class B
Certificates proportionately according to the outstanding principal amount
thereof.
8
“Class
B Investor Loss Amount” shall mean, with respect to each Distribution Date,
an amount equal to the product of (a) the Investor Loss Amount for the
related Due Period and (b) the Class B Floating Allocation applicable for
the related Due Period.
“Class
B Monthly Interest” shall mean the sum of the Class B-1 Monthly Interest and
the Class B-2 Monthly Interest.
“Class
B Monthly Principal” shall mean the monthly principal distributable in
respect of the Class B Certificates as calculated in accordance with subsection
4.7(c).
“Class
B Net Swap Payment” shall mean, for any Distribution Date, the net amount
payable by the Trust to the Hedge Counterparty pursuant to the Class B Swap
on
that Distribution Date as a result of LIBOR being less than the Class B Swap
Rate. For the avoidance of doubt, Class B Net Swap Payments do not
include Hedge Termination Fees or payment of breakage or other miscellaneous
costs.
“Class
B Net Swap Receipt” shall mean, for any Distribution Date, the net amount
payable to the Trust from the Hedge Counterparty pursuant to the Class B Swap
on
that Distribution Date as a result of LIBOR being greater than the Class B
Swap
Rate.
“Class
B Percentage” shall mean a fraction, the numerator of which is the
Class B Initial Investor Interest and the denominator of which is the
Initial Investor Interest.
“Class
B Principal Commencement Date” shall have the meaning specified in
subsection 4.7(c).
“Class
B Required Amount” shall have the meaning specified in
subsection 4.8(c).
“Class
B Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement
“Class
B Swap” shall mean any Interest Rate Swap Agreement relating to the Class B
Certificates.
“Class
B Swap Rate” shall mean 5.084% per annum.
“Class
B-1 Additional Interest” shall have the meaning specified in subsection
4.6(e).
“Class
B-1 Certificate Rate” shall mean, with respect to any Interest Period, a per
annum rate equal to LIBOR as of the related LIBOR Determination Date for such
Interest Period plus 2.00%.
“Class
B-1 Certificateholder” shall mean each Person in whose name a Class B-1
Certificate is registered in the Certificate Register.
“Class
B-1 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
B-1 Deficiency Amount” shall have the meaning specified in subsection
4.6(e).
9
“Class
B-1 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class B-1 Certificates as calculated in accordance with
subsection 4.6(e).
“Class
B-2 Additional Interest” shall have the meaning specified in subsection
4.6(f).
“Class
B-2 Certificate Rate” shall mean, with respect to any Interest Period, a
fixed per annum rate equal to 6.91%.
“Class
B-2 Certificateholder” shall mean each Person in whose name a Class B-2
Certificate is registered in the Certificate Register.
“Class
B-2 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
B-2 Deficiency Amount” shall have the meaning specified in subsection
4.6(f).
“Class
B-2 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class B-2 Certificates as calculated in accordance with
subsection 4.6(f).
“Class
C Available Funds” shall mean, with respect to any Distribution Date, an
amount equal to the sum of (a) the Class C Floating Allocation of Collections
of
Finance Charge Receivables allocated to the Series 2007-1 Certificates and
deposited in the Collection Account for the related Due Period (including
amounts under Sections 4.19(c) and 4.20(b) and other amounts that are in each
case to be treated as Collections of Finance Charge Receivables in accordance
with the Agreement (other than the Class C Net Cap Receipt)) and (b) the Class
C
Net Cap Receipt for the related Distribution Date.
“Class
C Cap” shall mean any Interest Rate Cap Agreement relating to the Class C
Certificates.
“Class
C Cap Rate” shall mean 9.00% per annum.
“Class
C Certificate Rate” with respect to any Interest Period shall have the
meaning specified in the Class C Purchase Agreement; provided that the Class
C
Certificate Rate shall in no event exceed a per annum rate equal to LIBOR as
of
the LIBOR Determination Date for such Interest Period plus 4.00%.
“Class
C Certificateholder” shall mean each Person in whose name a Class C
Certificate is registered in the Certificate Register.
“Class
C Certificates” shall have the meaning specified in subsection 1(a) of this
Supplement.
“Class
C Deficiency Amount” shall have the meaning specified in subsection
4.6(g).
“Class
C Expected Final Payment Date” shall mean the February 2013 Distribution
Date.
10
“Class
C Fixed Allocation” shall mean, with respect to any Due Period other than a
Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class C Investor Interest as of the close of business on the last day of the
Revolving Period, and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
C Floating Allocation” shall mean, with respect to any Due Period (including
any day within such Due Period), the percentage equivalent (which percentage
shall never exceed 100%) of a fraction:
(a) the
numerator of which is the Class C Investor Interest as of the close of business
on the last day of the preceding Due Period (or with respect to the first Due
Period ending after the Closing Date, the Class C Investor Interest as of the
Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
C Initial Investor Interest” shall mean the aggregate initial principal
amount of the Class C Certificates, which is $28,800,000.
“Class
C Investor Allocation” shall mean, with respect to any Due Period (a) with
respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor Dilution
Amounts and Collections of Finance Charge Receivables at any time and
Collections of Principal Receivables during the Revolving Period, the Class
C
Floating Allocation and (b) with respect to Collections of Principal
Receivables during the Controlled Amortization Period or Early Amortization
Period, the Class C Fixed Allocation.
“Class
C Investor Charge-Off” shall have the meaning specified in
subsection 4.10(d).
“Class
C Investor Dilution Amount” shall mean, for any Distribution Date, an amount
equal to the product of (a) the Series 2007-1 Investor Dilution Amount for
such
Distribution Date and (b) the Class C Floating Allocation for the related Due
Period.
“Class
C Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class C
Initial Investor Interest, minus (b) the aggregate amount of principal payments
made to the Class C Certificateholders prior to such date (other than any
principal payment made pursuant to subsection 4.9(h)), minus (c) the
aggregate amount of Class C Investor Charge-Offs for all prior Distribution
Dates pursuant to subsections 4.10(a), (b), (c) and (d), minus (d) the
aggregate amount of Reallocated Class C Principal Collections allocated pursuant
to subsection 4.12(b)(iii) on all prior Distribution Dates, minus (e) the
amount of any reduction to the Class C Investor Interest as a result of the
purchase by the Seller and subsequent cancellation of the Class C Certificates
pursuant to Section 4.16, minus (f) the Class C Percentage of the Initial
Total Pre-Funded Amount, plus (g) the Class C Percentage of the amount of
any increases to the Series Investor Interest pursuant to Section 4.21 during
the Funding Period, and plus (h) the aggregate amount of Excess
Spread and Shared
11
Excess
Finance Charge Collections allocated and available on all prior Distribution
Dates pursuant to subsection 4.11(k) for the purpose of reimbursing amounts
deducted pursuant to the foregoing clauses (c) and (d).
“Class
C Investor Loss Amount” shall mean, with respect to any Distribution Date,
an amount equal to the product of (a) the Investor Loss Amount for the related
Due Period and (b) the Class C Floating Allocation applicable for the related
Due Period.
“Class
C Monthly Interest” shall have the meaning specified in subsection
4.6(g).
“Class
C Monthly Principal” shall mean the monthly principal distributable in
respect of the Class C Certificates as calculated in accordance with subsection
4.7(d).
“Class
C Net Cap Receipt” means, for any Distribution Date, the net amount payable
to the Trust from the Hedge Counterparty pursuant to the Class C Cap on that
Distribution Date as a result of LIBOR being greater than the Class C Cap
Rate.
“Class
C Percentage” shall mean a fraction, the numerator of which is the
Class C Initial Investor Interest and the denominator of which is the
Initial Investor Interest.
“Class
C Purchase Agreement” shall mean the agreement among the Seller, the
Servicer, the Trustee and the Class C Certificateholders, as amended, modified
or restated from time to time.
“Class
C Required Amount” shall mean the amount, if any, equal to the sum of
(a) the amount, if any, by which the sum of (i) the Class C Monthly
Interest for such Distribution Date, plus (ii) the Class C
Deficiency Amount, if any, for such Distribution Date, plus (iii) the Class
C Investor Loss Amount, if any, for the prior Due Period, plus (iv) the
Class C Investor Dilution Amount, if any, for such Distribution Date exceeds
the
amount of Excess Spread available to be applied to such amounts pursuant to
subsections 4.11(h), (i) and (j), plus (b) the amount, if any, by
which the sum of (i) the Class C Servicing Fee for the prior Due Period,
plus (ii) the Class C Servicing Fee, if any, due but not paid on any
prior Distribution Date, exceeds the Class C Available Funds for the related
Due
Period and the amount of any Excess Spread available to be applied to such
amount pursuant to subsection 4.11(g).
“Class
C Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement.
“Class
D Available Funds” shall mean, with respect to any Distribution Date, an
amount equal to the Class D Floating Allocation of Collections of Finance Charge
Receivables allocated to the Series 2007-1 Certificates and deposited in the
Collection Account for the related Due Period (including amounts under Sections
4.19(c) and 4.20(b) and other amounts that are in each case to be treated as
Collections of Finance Charge Receivables in accordance with the
Agreement).
“Class
D Certificateholders” shall mean any Person in whose name a Class D
Certificate is registered in the Certificate Register.
12
“Class
D Certificates” shall have the meaning specified in subsection 1(a) of this
Supplement.
“Class
D Deficiency Amount” shall mean, with respect to any Distribution Date, the
sum of the Class D-1 Deficiency Amount plus the Class D-2 Deficiency
Amount.
“Class
D Expected Final Payment Date” shall mean the March 2013 Distribution
Date.
“Class
D Fixed Allocation” shall mean, with respect to any Due Period other than a
Due Period relating to the Revolving Period, the sum of the Class D-1 Fixed
Allocation and the Class D-2 Fixed Allocation.
“Class
D Floating Allocation” shall mean, with respect to any Due Period (including
any day within such Due Period), the sum of the Class D-1 Floating Allocation
and the Class D-2 Floating Allocation.
“Class
D Initial Investor Interest” shall mean $30,400,000, which amount shall be
allocated between the Class D-1 Initial Investor Interest and the Class D-2
Initial Investor Interest as set forth in the Class D Purchase
Agreements.
“Class
D Investor Allocation” shall mean, with respect to any Due Period, (a) with
respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor Dilution
Amounts and Collections of Finance Charge Receivables at any time and Principal
Receivables during the Revolving Period, the Class D Floating Allocation and
(b)
with respect to Collections of Principal Receivables during the Controlled
Amortization Period or Early Amortization Period, the Class D Fixed
Allocation.
“Class
D Investor Charge-Offs” shall mean the sum of Class D-1 Investor Charge-Offs
plus Class D-2 Investor Charge-Offs.
“Class
D Investor Dilution Amount” shall mean, for any Distribution Date, an amount
equal to the product of (a) the Series 2007-1 Investor Dilution Amount for
such
Distribution Date and (b) the Class D Floating Allocation for the related Due
Period.
“Class
D Investor Interest” shall mean, on any date of determination, the sum of
the Class D-1 Investor Interest plus the Class D-2 Investor
Interest.
“Class
D Investor Loss Amount” shall mean, with respect to any Distribution Date,
an amount equal to the product of (a) the Investor Loss Amount for the
related Due Period and (b) the Class D Floating Allocation applicable for the
related Due Period.
“Class
D Monthly Interest” shall mean the sum of the Class D-1 Monthly Interest
plus the Class D-2 Monthly Interest.
“Class
D Monthly Principal” shall mean the sum of the Class D-1 Monthly Principal
plus the Class D-2 Monthly Principal.
13
“Class
D Percentage” shall mean the sum of the Class D-1 Percentage and the Class
D-2 Percentage.
“Class
D Purchase Agreement(s)” shall mean the Class D-1 Purchase Agreement and/or
the Class D-2 Purchase Agreement, as the case may be.
“Class
D Servicing Fee” shall mean the sum of the Class D-1 Servicing Fee plus the
Class D-2 Servicing Fee.
“Class
D-1 Certificate Rate” with respect to any Interest Period shall have the
meaning specified in the Class D-1 Purchase Agreement; provided that the Class
D-1 Certificate Rate shall in no event exceed a per annum rate equal to (i)
if
the Class D-1 Certificate Rate is a floating rate, LIBOR as of the LIBOR
Determination Date for such Interest Period plus 10.0% and (ii) if the Class
D-1
Certificate Rate is a fixed rate, 15.0%.
“Class
D-1 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
D-1 Deficiency Amount” shall have the meaning specified in
subsection 4.6(h).
“Class
D-1 Fixed Allocation” shall mean, with respect to any Due Period other than
a Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class D-1 Investor Interest as of the close of business on the last day of
the
Revolving Period, and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
D-1 Floating Allocation” shall mean, with respect to any Due Period
(including any day within such Due Period), the percentage equivalent (which
percentage shall never exceed 100%) of a fraction:
(a) the
numerator of which is the Class D-1 Investor Interest as of the close of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Class D-1 Investor Interest
as of the Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
D-1 Initial Investor Interest” shall mean the portion of the Class D Initial
Investor Interest allocated to the Class D-1 Investor Interest, as set forth
in
the Class D-1 Purchase Agreement.
“Class
D-1 Investor Allocation” shall mean, with respect to any Due Period, (a)
with respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor
Dilution Amounts and Collections of Finance Charge Receivables at any time
and
Principal Receivables during the
14
Revolving
Period, the Class D-1 Floating Allocation and (b) with respect to Collections
of
Principal Receivables during the Controlled Amortization Period or Early
Amortization Period, the Class D-1 Fixed Allocation.
“Class
D-1 Investor Charge-Off” shall have the meaning specified in
subsection 4.10(e).
“Class
D-1 Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class D-1
Initial Investor Interest, minus (b) the aggregate amount of principal
payments made to the holders of the Class D-1 Certificates prior to such date
(other than any principal payments made pursuant to subsection 4.9(h)),
minus (c) the aggregate amount of Class D-1 Investor Charge-Offs for
all prior Distribution Dates pursuant to subsections 4.10(a) through (e),
minus (d) the aggregate amount of Reallocated Class D-1 Principal
Collections allocated pursuant to subsection 4.12(b)(ii) on all prior
Distribution Dates, minus (e) the amount of any reduction to the Class D-1
Investor Interest as a result of the purchase by the Seller and subsequent
cancellation of the Class D-1 Certificates pursuant to Section 4.16, minus
(f)
the Class D-1 Percentage of the Initial Total Pre-Funded Amount, plus (g)
the Class D-1 Percentage of the amount of any increases to the Series Investor
Interest pursuant to Section 4.21 during the Funding Period, plus (h) the
aggregate amount of Excess Spread and Shared Excess Finance Charge Collections
allocated and available on all prior Distribution Dates pursuant to
subsection 4.11(q) for the purpose of reimbursing amounts deducted pursuant
to the foregoing clauses (c) and (d); provided that the Class D-1
Investor Interest determined pursuant to the foregoing clauses (a) through
(h)
may be subject to further increase or decrease under the circumstances described
in Section 16(e) of this Supplement.
“Class
D-1 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class D-1 Certificates as calculated in accordance with
subsection 4.6(h).
“Class
D-1 Monthly Principal” shall mean the monthly principal distributable in
respect of the Class D-1 Certificates as calculated in accordance with
subsection 4.7(e).
“Class
D-1 Percentage” shall mean a fraction, the numerator of which is the
Class D-1 Initial Investor Interest and the denominator of which is the
Initial Investor Interest.
“Class
D-1 Purchase Agreement” shall be the agreement among the Seller, the
Servicer, the Trustee and the Class D-1 Certificateholders, as amended, modified
or restated from time to time.
“Class
D-1 Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement.
“Class
D-2 Certificate Rate” with respect to any Interest Period shall have the
meaning specified in the Class D-2 Purchase Agreement; provided that the Class
D-2 Certificate Rate shall in no event exceed a per annum rate equal to (i)
if
the Class D-2 Certificate Rate is a floating rate, LIBOR as of the LIBOR
Determination Date for such Interest Period plus 10.0% and (ii) if the Class
D-2
Certificate Rate is a fixed rate, 15.0%.
“Class
D-2 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
15
“Class
D-2 Deficiency Amount” shall have the meaning specified in
subsection 4.6(i).
“Class
D-2 Fixed Allocation” shall mean, with respect to any Due Period other than
a Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class D-2 Investor Interest as of the close of business on the last day of
the
Revolving Period, and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
D-2 Floating Allocation” shall mean, with respect to any Due Period
(including any day within such Due Period), the percentage equivalent (which
percentage shall never exceed 100%) of a fraction:
(a) the
numerator of which is the Class D-2 Investor Interest as of the close of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Class D-2 Investor Interest
as of the Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
D-2 Initial Investor Interest” shall mean the portion of the Class D Initial
Investor Interest allocated to the Class D-2 Investor Interest, as set forth
in
the Class D-2 Purchase Agreement.
“Class
D-2 Investor Allocation” shall mean, with respect to any Due Period, (a)
with respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor
Dilution Amounts and Collections of Finance Charge Receivables at any time
and
Principal Receivables during the Revolving Period, the Class D-2 Floating
Allocation and (b) with respect to Collections of Principal Receivables during
the Controlled Amortization Period or Early Amortization Period, the Class
D-2
Fixed Allocation.
“Class
D-2 Investor Charge-Off” shall have the meaning specified in
subsection 4.10(e).
“Class
D-2 Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class D-2
Initial Investor Interest, minus (b) the aggregate amount of principal
payments made to the holders of the Class D-2 Certificates prior to such date
(other than any principal payments made pursuant to subsection 4.9(h)),
minus (c) the aggregate amount of Class D-2 Investor Charge-Offs for
all prior Distribution Dates pursuant to subsections 4.10(a) through (e),
minus (d) the aggregate amount of Reallocated Class D-2 Principal
Collections allocated pursuant to subsection 4.12(b)(i) on all prior
Distribution Dates, minus (e) the amount of any reduction to the Class
D-2 Investor Interest as a result of the purchase by the Seller and subsequent
cancellation of the Class D-2 Certificates pursuant to Section 4.16,
minus (f) the Class D-2 Percentage of the Initial Total Pre-Funded
Amount, plus (g) the Class D-2 Percentage of the amount of any increases
to the Series Investor Interest pursuant to Section 4.21 during the Funding
Period, plus (h) the aggregate amount of
16
Excess
Spread and Shared Excess Finance Charge Collections allocated and available
on
all prior Distribution Dates pursuant to subsection 4.11(q) for the purpose
of reimbursing amounts deducted pursuant to the foregoing clauses (c) and (d)
;
provided that the Class D-2 Investor Interest determined pursuant to the
foregoing clauses (a) through (h) may be subject to further increase or decrease
under the circumstances described in Section 16(e) of this
Supplement.
“Class
D-2 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class D-2 Certificates as calculated in accordance with
subsection 4.6(i).
“Class
D-2 Monthly Principal” shall mean the monthly principal distributable in
respect of the Class D-2 Certificates as calculated in accordance with
subsection 4.7(f).
“Class
D-2 Percentage” shall mean a fraction, the numerator of which is the
Class D-2 Initial Investor Interest and the denominator of which is the
Initial Investor Interest.
“Class
D-2 Purchase Agreement” shall mean the agreement among the Seller, the
Servicer, the Trustee and the Class D-2 Certificateholders, as amended, modified
or restated from time to time.
“Class
D-2 Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement.
“Class
M Additional Interest” shall mean the sum of the Class M-1 Additional
Interest and the Class M-2 Additional Interest.
“Class
M Available Funds” shall mean, with respect to any Distribution Date, an
amount equal to the sum of (a) the Class M Floating Allocation of the
Collections of Finance Charge Receivables allocated to the Series 2007-1
Certificates and deposited in the Collection Account for the related Due Period
(including amounts under Sections 4.19(c) and 4.20(b) and other amounts that
are
in each case to be treated as Collections of Finance Charge Receivables in
accordance with the Agreement (other than the Class M Net Swap Receipt)) and
(b)
the Class M Net Swap Receipt for the related Distribution Date.
“Class
M Certificate Rate” means the Class M-1 Certificate Rate or the Class M-2
Certificate Rate, as applicable.
“Class
M Certificateholder” shall mean each Person in whose name a Class M
Certificate is registered in the Certificate Register.
“Class
M Certificates” shall have the meaning specified in subsection 1(a) of this
Supplement.
“Class
M Controlled Amortization Amount” for any Due Period related to the
Controlled Amortization Period shall mean $19,200,000; provided, however, that
such amount shall be adjusted downward to reflect (i) any reduction to the
Class
M Investor Interest as a result of any cancellation of Class M Certificates
pursuant to Section 4.16 and (ii) any principal payments to the Class M
Certificateholders pursuant to subsection 4.9(h), so that such amount shall
be
equal
17
to
the
outstanding principal amount of the Class M Certificates as of the last day
of
the Due Period prior to the commencement of the Controlled Amortization
Period.
“Class
M Controlled Amortization Shortfall” shall mean (i) with respect to the
first Due Period related to the Controlled Amortization Period occurring after
the Class A Expected Final Payment Date, zero, and (ii) with respect to each
other Due Period thereafter during the Controlled Amortization Period occurring
on or prior to the Class M Expected Final Payment Date, means the excess, if
any, of the Class M Controlled Payment Amount for the previous Due Period over
the amount of Available Principal Collections distributed as payment of such
Class M Controlled Payment Amount on the Distribution Date related to such
previous Due Period.
“Class
M Controlled Payment Amount” for any Due Period, shall mean, the sum of (a)
the Class M Controlled Amortization Amount and (b) any existing Class M
Controlled Amortization Shortfall.
“Class
M Deficiency Amount” shall mean the sum of the Class M-1 Deficiency Amount
and the Class M-2 Deficiency Amount.
“Class
M Expected Final Payment Date” shall mean the December 2012 Distribution
Date.
“Class
M Fixed Allocation” shall mean, with respect to any Due Period other than a
Due Period relating to the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is
the
Class M Investor Interest as of the close of business on the last day of the
Revolving Period, and the denominator of which is equal to the Series Investor
Interest as of the close of business on the last day of the Revolving
Period.
“Class
M Floating Allocation” shall mean, with respect to any Due Period (including
any day within such Due Period), the percentage equivalent (which percentage
shall never exceed 100%) of a fraction:
(a) the
numerator of which is the Class M Investor Interest as of the close of business
on the last day of the preceding Due Period (or with respect to the first Due
Period ending after the Closing Date, the Class M Investor Interest as of the
Closing Date); and
(b) the
denominator of which is equal to the Series Investor Interest as of the close
of
business on the last day of the preceding Due Period (or with respect to the
first Due Period ending after the Closing Date, the Series Investor Interest
as
of the Closing Date).
“Class
M Initial Investor Interest” shall mean the aggregate initial principal
amount of the Class M Certificates, which is $19,200,000. $4,000,000
of such initial principal amount is allocated to the Class M-1
Certificates. $15,200,000 of such initial principal amount is
allocated to the Class M-2 Certificates.
“Class
M Investor Allocation” shall mean, with respect to any Due Period (a) with
respect to Series 2007-1 Investor Loss Amounts, Series 2007-1 Investor Dilution
Amounts and
18
Collections
of Finance Charge Receivables at any time and Collections of Principal
Receivables during the Revolving Period, the Class M Floating Allocation and
(b) with respect to Collections of Principal Receivables during the
Controlled Amortization Period or Early Amortization Period, the Class M Fixed
Allocation.
“Class
M Investor Charge-Off” shall have the meaning specified in
subsection 4.10(b).
“Class
M Investor Dilution Amount” shall mean, for any Distribution Date, an amount
equal to the product of (a) the Series 2007-1 Investor Dilution Amount for
such
Distribution Date and (b) the Class M Floating Allocation for the related Due
Period.
“Class
M Investor Interest” shall mean, on any date of determination, an amount
equal to the greater of (x) zero and (y) an amount equal to (a) the Class M
Initial Investor Interest, minus (b) the aggregate amount of principal payments
made to Class M Certificateholders prior to such date (other than any principal
payment made pursuant to subsection 4.9(h)), minus (c) the aggregate
amount of Class M Investor Charge-Offs for all prior Distribution Dates pursuant
to subsections 4.10(a) and (b), minus (d) the aggregate amount of
Reallocated Class M Principal Collections allocated pursuant to subsection
4.12(b)(v) on all prior Distribution Dates, minus (e) the amount of any
reduction to the Class M Investor Interest as a result of the purchase by the
Seller and subsequent cancellation of the Class M Certificates pursuant to
Section 4.16, minus (f) the Class M Percentage of the Initial Total
Pre-Funded Amount, plus (g) the Class M Percentage of the amount of any
increases to the Series Investor Interest pursuant to Section 4.21 during the
Funding Period, plus (h) the aggregate amount of Excess Spread and Shared
Excess Finance Charge Collections allocated and available on all prior
Distribution Dates pursuant to subsection 4.11(d) for the purpose of
reimbursing amounts deducted pursuant to the foregoing clauses (c) and
(d). The Class M Investor Interest shall be allocated to each
subclass of the Class M Certificates proportionately according to the
outstanding principal amount thereof.
“Class
M Investor Loss Amount” shall mean, with respect to each Distribution Date,
an amount equal to the product of (a) the Investor Loss Amount for the
related Due Period and (b) the Class M Floating Allocation applicable for
the related Due Period.
“Class
M Monthly Interest” shall mean the sum of the Class M-1 Monthly Interest and
the Class M-2 Monthly Interest.
“Class
M Monthly Principal” shall mean the monthly principal distributable in
respect of the Class M Certificates as calculated in accordance with subsection
4.7(b).
“Class
M Net Swap Payment” shall mean, for any Distribution Date, the net amount
payable by the Trust to the Hedge Counterparty pursuant to the Class M Swap
on
that Distribution Date as a result of LIBOR being less than the Class M Swap
Rate. For the avoidance of doubt, Class M Net Swap Payments do not
include Hedge Termination Fees or payment of breakage or other miscellaneous
costs.
“Class
M Net Swap Receipt” means, for any Distribution Date, the net amount payable
to the Trust from the Hedge Counterparty pursuant to the Class M Swap on that
Distribution Date as a result of LIBOR being greater than the Class M Swap
Rate.
19
“Class
M Percentage” shall mean a fraction, the numerator of which is the Class M
Initial Investor Interest and the denominator of which is the Initial Investor
Interest.
“Class
M Principal Commencement Date” shall have the meaning specified in
subsection 4.7(b).
“Class
M Required Amount” shall have the meaning specified in
subsection 4.8(b).
“Class
M Servicing Fee” shall have the meaning specified in Section 3 of this
Supplement.
“Class
M Swap” shall mean any Interest Rate Swap Agreement relating to the Class
M-1 Certificates.
“Class
M Swap Rate” means 5.081% per annum.
“Class
M-1 Additional Interest” shall have the meaning specified in subsection
4.6(c).
“Class
M-1 Certificate Rate” shall mean, with respect to any Interest Period, a per
annum rate equal to LIBOR as of the related LIBOR Determination Date for such
Interest Period plus 1.65%.
“Class
M-1 Certificateholder” shall mean each Person in whose name a Class M-1
Certificate is registered in the Certificate Register.
“Class
M-1 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
M-1 Deficiency Amount” shall have the meaning specified in subsection
4.6(c).
“Class
M-1 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class M-1 Certificates as calculated in accordance with
subsection 4.6(c).
“Class
M-2 Additional Interest” shall have the meaning specified in subsection
4.6(d).
“Class
M-2 Certificate Rate” shall mean, with respect to any Interest Period, a
fixed per annum rate equal to 6.56%.
“Class
M-2 Certificateholder” shall mean each Person in whose name a Class M-2
Certificate is registered in the Certificate Register.
“Class
M-2 Certificates” shall have the meaning specified in subsection 1(a) of
this Supplement.
“Class
M-2 Deficiency Amount” shall have the meaning specified in subsection
4.6(d).
“Class
M-2 Monthly Interest” shall mean the monthly interest distributable in
respect of the Class M-2 Certificates as calculated in accordance with
subsection 4.6(d).
20
“Clearstream”
means Clearstream Banking, société anonyme.
“Closing
Date” shall mean October 17, 2007.
“Controlled
Amortization Period” shall mean, unless an Early Amortization Event shall
have occurred prior thereto, the period commencing on March 1, 2012, and ending
upon the first to occur of (a) the payment in full of the Series 2007-1
Certificates, (b) the commencement of the Early Amortization Period and (c)
the
Series 2007-1 Termination Date.
“Controlling
Certificateholders” shall mean (a) on any date of determination on which the
Class A Investor Interest, the Class M Investor Interest and the Class B
Investor Interest is greater than zero, the Holders of Class A Certificates,
Class M Certificates and Class B Certificates evidencing more than 50% of the
sum of the Class A Investor Interest, the Class M Investor Interest and the
Class B Investor Interest, (b) thereafter, on any date of determination on
which
the Class C Investor Interest is greater than zero, the Holders of Class C
Certificates evidencing more than 50% of the Class C Investor Interest and
(c)
thereafter, the Required Class D Holders (as defined in the Class D
Purchase Agreement).
“Cumulative
Principal Shortfall” shall mean the sum of the Principal Shortfalls (as such
term is defined in each of the related Supplements or Receivables Purchase
Agreement) for each Series in Group One that are Principal Sharing
Series.
“Depository”
means The Depository Trust Company, as initial Depository, or any successor
Clearing Agency appointed by the Seller.
“Designated
Maturity” shall mean, for any LIBOR Determination Date, one
month.
“Distribution
Date” shall mean November 15, 2007 and the fifteenth day of each calendar
month thereafter, or if such fifteenth day is not a Business Day, the next
succeeding Business Day.
“Early
Amortization Period” shall mean the period commencing at the close of
business on the Business Day immediately preceding the day on which an Early
Amortization Event with respect to Series 2007-1 is deemed to have occurred,
and
ending on the Series 2007-1 Termination Date.
“Enhancement”
shall mean (a) with respect to the Class A Certificates, the subordination
of
the Class M Certificates, the Class B Certificates, the Class C Certificates
and
the Class D Certificates, (b) with respect to the Class M Certificates, the
subordination of the Class B Certificates, Class C Certificates and the Class
D
Certificates, (c) with respect to the Class B Certificates, the subordination
of
the Class C Certificates and the Class D Certificates, (d) with respect to
the Class C Certificates, the subordination of the Class D Certificates, and
(e)
with respect to the Class D-1 Certificates, the subordination of the Class
D-2
Certificates.
“Enhancement
Provider” shall mean, collectively, the Class C Certificateholders and the
Class D Certificateholders specified as such in the Class C Purchase Agreement
or the Class D Purchase Agreement, as applicable.
21
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear
System.
“Excess
Spread” shall mean, with respect to any Distribution Date, the sum of the
amounts with respect to such Distribution Date, if any, specified pursuant
to
subsections 4.9(a)(v), 4.9(b)(iii), 4.9(c)(iii), 4.9(d)(ii) and
4.9(e)(ii).
“Finance
Charge Shortfall” shall have the meaning specified in
subsection 4.14(b).
“Fixed
Allocation Percentage” shall mean, with respect to any Due Period (including
any day within such Due Period) occurring on or after the Fixed Principal
Allocation Date, the percentage equivalent of a fraction:
(a) the
numerator of which is the Series Investor Interest as of the close of business
on the last day of the Revolving Period; provided, that if Series 2007-1
is paired with a Paired Series (other than Series 2002-1) and an Early
Amortization Event occurs with respect to such Paired Series, the Seller shall,
by written notice delivered to the Trustee, the Servicer and the Rating
Agencies, reduce the numerator to an amount equal to the Series Investor
Interest as of the last day of the revolving period for such Paired Series;
provided that each of the Rating Agencies confirms in writing,
concurrently with the issuance of such Paired Series (other than Series 2002-1),
that such change would not result in a reduction or withdrawal by such Rating
Agency of its rating for the Series 2007-1 Certificates; and
(b) the
denominator of which is the greater of (i) the sum of (A) the aggregate
amount of Principal Receivables in the Trust at the end of the day on the last
day of the prior Due Period and (B) the Excess Funding Amount as of the close
of
business of the last day of the prior Due Period, and (ii) the sum of the
numerators used to calculate the Investor/Purchaser Percentages for such Due
Period with respect to Principal Receivables for all Series of Certificates
and
Receivable Purchase Series outstanding;
provided,
that with respect to any Due Period in which one or more Reset Dates
occur:
(x) the
denominator determined pursuant to subclause (b)(i)(A) shall be (1) the
aggregate amount of Principal Receivables in the Trust as of the close of
business on the later of the last day of the preceding Due Period or the
preceding Reset Date, for the period from and including the first day of the
current Due Period or preceding Reset Date, as applicable, to but excluding
such
Reset Date and (2) the aggregate amount of Principal Receivables in the Trust
as
of the close of business on such Reset Date, for the period from and including
such Reset Date to the earlier of the last day of such Due Period (in which
case
such period shall include such day) or the next succeeding Reset Date (in which
case such period shall not include such succeeding Reset Date); and
providedfurther that with respect to any Due Period in which a
Reset Date occurs, if the Servicer need not make daily deposits of Collections
into the Collection Account, the amount in subclause (b)(i)(A) shall be the
Average Principal Balance; and
22
(y) the
denominator determined pursuant to subclause (b)(ii) shall be (1) the sum of
the
numerators used to calculate the Investor/Purchaser Percentages for all
outstanding Series for allocations with respect to Principal Receivables for
all
such Series as of the close of business on the later of the last day of the
preceding Due Period or the preceding Reset Date, for the period from and
including the first day of the current Due Period or preceding Reset Date,
as
applicable, to but excluding such Reset Date and (2) the sum of the numerators
used to calculate the Investor/Purchaser Percentages for all outstanding Series
for allocations with respect to Principal Receivables for all such Series as
of
the close of business on such Reset Date, for the period from and including
such
Reset Date to the earlier of the last day of such Due Period (in which case
such
period shall include such day) or the next succeeding Reset Date (in which
case
such period shall not include such succeeding Reset Date).
“Fixed
Principal Allocation Date” shall mean the earlier of (a) the date on which
an Early Amortization Period with respect to Series 2007-1 commences, and (b)
the date of commencement of the Controlled Amortization Period.
“Floating
Allocation Percentage” shall mean, with respect to any Due Period (including
any day within such Due Period), the percentage equivalent of a
fraction:
(a) the
numerator of which is the Investor Interest at the end of the day on the last
day of the preceding Due Period (or with respect to the first Due Period ending
after the Closing Date, the Investor Interest as of the Closing Date),
and
(b) the
denominator of which is the greater of (1) the sum of (A) the aggregate amount
of Principal Receivables in the Trust at the end of the day on the last day
of
the prior Due Period (or with respect to the first Due Period ending after
the
Closing Date, at the end of the day on the Closing Date) and (B) the Excess
Funding Amount as of the close of business of the last day of the preceding
Due
Period, and (2) the sum of the numerators used to calculate the
Investor/Purchaser Percentages for such Due Period with respect to Finance
Charge Receivables, Series Dilution Amounts or Loss Amounts, as applicable,
for
all Series of Certificates and Receivable Purchase Series
outstanding;
provided
that with respect to any Due Period in which one or more Reset Dates
occur:
(x) the
numerator determined pursuant to subclause (a) shall be (1) the Investor
Interest at the end of the day on the later of (A) the last day of the preceding
Due Period (or with respect to the first Due Period ending after the Closing
Date, the Investor Interest as of the Closing Date) or (B) the preceding Reset
Date, for the period from and including the first day of the current Due Period
or preceding Reset Date, as applicable, to but excluding such Reset Date and
(2) the Investor Interest at the end of the day on such Reset Date, for the
period from and including such Reset Date to the earlier of the last day of
such
Due Period (in which case such period shall include such day) or the next
succeeding Reset Date (in which case such period shall not include such
succeeding Reset Date);
23
(y) the
denominator determined pursuant to subclause (b)(1)(A) shall be (1) the
aggregate amount of Principal Receivables in the Trust as of the close of
business on the later of the last day of the preceding Due Period or the
preceding Reset Date, for the period from and including the first day of the
current Due Period or preceding Reset Date, as applicable, to but excluding
such
Reset Date and (2) the aggregate amount of Principal Receivables in the Trust
as
of the close of business on such Reset Date, for the period from and including
such Reset Date to the earlier of the last day of such Due Period (in which
case
such period shall include such day) or the next succeeding Reset Date (in which
case such period shall not include such succeeding Reset Date); provided that
with respect to any Due Period in which a Reset Date occurs, if the Servicer
need not make daily deposits of Collections into the Collection Account, the
amount in subclause (b)(1)(A) shall be the Average Principal Balance;
and
(z) the
denominator determined pursuant to subclause (b)(2) shall be (1) the sum of
the
numerators used to calculate the Investor/Purchaser Percentages for all
outstanding Series for allocations with respect to Finance Charge Receivables,
Loss Amounts or Principal Receivables, as applicable, for all such Series as
of
the close of business on the later of the last day of the preceding Due Period
or the preceding Reset Date, for the period from and including the first day
of
the current Due Period or preceding Reset Date, as applicable, to but excluding
such Reset Date and (2) the sum of the numerators used to calculate the
Investor/Purchaser Percentages for all outstanding Series for allocations with
respect to Finance Charge Receivables, Series Dilution Amounts, Loss Amounts
or
Principal Receivables, as applicable, for all such Series as of the close of
business on such Reset Date, for the period from and including such Reset Date
to the earlier of the last day of such Due Period (in which case such period
shall include such day) or the next succeeding Reset Date (in which case such
period shall not include such succeeding Reset Date).
“Funding
Period” shall mean the period from and including the Closing Date to and
including the earliest of (x) the first day on which the Series Investor
Interest equals the Initial Investor Interest; (y) the commencement of the
Early
Amortization Period and (z) the May 2008 Distribution Date.
“Funding
Period Reserve Account” shall have the meaning set forth in subsection
4.20(a).
“Funding
Period Reserve Draw Amount” shall mean, with respect to each Distribution
Date during the Funding Period, the lesser of (a) the amount on deposit in
the
Funding Period Reserve Account on such Distribution Date, other than net
investment income (before giving effect to any withdrawal to be made from the
Funding Period Reserve Account on such Distribution Date) and (b) the
Pre-Funding Interest Amount for such Distribution Date.
“Funding
Period Termination Distribution Date” shall mean the earlier to occur of (x)
the first Distribution Date to occur following the commencement of the Early
Amortization Period and (y) if the Funding Period shall not have terminated
pursuant to clause (x) of the definition of
24
“Funding
Period” (after giving effect to any increase in the Series Investor Interest on
the May 2008 Distribution Date), the May 2008 Distribution Date.
“Group
One” shall mean Series 2007-1 and each other Series specified in the related
Supplement or Receivables Purchase Agreement to be included in Group
One.
“Hedge
Counterparty” means Barclays Bank PLC or any other counterparty under the
initial Interest Rate Swap Agreements or any Interest Rate Cap Agreement or
any
successor agreement pertaining to the initial Class A Swap, the initial Class
M
Swap, the initial Class B Swap or the initial Class C Cap.
“Hedge
Reserve Account” shall mean the account established and maintained pursuant
to subsection 4.22(a).
“Hedge
Termination Fee” shall have the meaning specified in subsection
4.22(c).
“Initial
Investor Interest” shall mean the sum of the Class A Initial Investor
Interest, the Class M Initial Investor Interest, the Class B Initial
Investor Interest, the Class C Initial Investor Interest and the Class D Initial
Investor Interest.
“Initial
Purchaser” shall mean Barclays Capital Inc., as initial purchaser of the
Class A Certificates, the Class M Certificates and the Class B
Certificates.
“Initial
Total Pre-Funded Amount” shall mean $285,000,000.
“Interest
Period” shall mean, with respect to any Distribution Date, the period from
and including the previous Distribution Date through the day preceding such
Distribution Date, except that the initial Interest Period shall be the period
from and including the Closing Date through the day preceding the initial
Distribution Date.
“Interest
Rate Cap Agreement” shall mean each interest rate cap agreement between
Trustee, on behalf of the Trust, and the Hedge Counterparty substantially in
the
form of Exhibit H-2; provided, however, that any Interest Rate Cap Agreement
can
deviate from the terms described in Exhibit H-2 at the direction of the Servicer
if the Rating Agency Condition is satisfied, and the Trustee shall be
conclusively entitled to rely on such direction.
“Interest
Rate Hedge Agreements” shall mean the Interest Rate Swap Agreements and the
Interest Rate Cap Agreements.
“Interest
Rate Swap Agreement” shall mean each interest rate swap agreement between
Trustee, on behalf of the Trust, and the Hedge Counterparty substantially in
the
form of Exhibit H-1; provided, however, that the Interest Rate Swap Agreements
can deviate from the terms described in Exhibit H-1 at the direction of the
Servicer if the Rating Agency Condition is satisfied, and the Trustee shall
be
conclusively entitled to rely on such direction.
“Investor
Charge-Offs” shall mean, on any date of determination, an amount equal to
the sum of (i) the Class A Investor Charge-Offs, (ii) the Class M Investor
Charge-Offs, (iii) the Class
25
B
Investor Charge-Offs, (iv) the Class C Investor Charge-Offs and (v) the
Class D Investor Charge-Offs.
“Investor
Interest” for Series 2007-1 shall mean the Series Investor
Interest.
“Investor
Loss Amount” shall mean, with respect to any Distribution Date, an amount
equal to the product of (a) the aggregate of the Loss Amounts for the
related Due Period and (b) the Floating Allocation Percentage for such Due
Period.
“Investor/Purchaser
Percentage” for Series 2007-1 shall mean, with respect to Collections of
Principal Receivables, the Principal Allocation Percentage, and with respect
to
Collections of Finance Charge Receivables, Series Dilution Amounts or Loss
Amounts, the Floating Allocation Percentage.
“Lane
▇▇▇▇▇▇ Portfolio” shall mean the accounts that the Originator expects to
acquire which arise under a portfolio of proprietary credit cards used primarily
at Lane ▇▇▇▇▇▇® stores.
“Lane
▇▇▇▇▇▇ Portfolio Distribution Date” shall mean the earlier to occur of (x)
February 15, 2008, and (y) the first Distribution Date that is at least ten
(10) days after the date on which the Servicer shall have notified the Trustee
in writing that the Originator will not acquire the Lane ▇▇▇▇▇▇
Portfolio.
“LIBOR”
shall mean, for any Interest Period, the London interbank offered rate for
United States dollar deposits of the Designated Maturity determined by the
Trustee for each Interest Period in accordance with the provisions of Section
4.17.
“LIBOR
Determination Date” shall mean October 15, 2007 for the initial Interest
Period and the second London Business Day prior to the commencement of each
subsequent Interest Period.
“London
Business Day” shall mean a day on which the Trustee and commercial banks in
the City of London are open for the transaction of commercial banking
business.
“Minimum
Required Funding Period Reserve Amount” shall mean, with respect to any
Distribution Date, an amount equal to the product of (i) 1.3% and (ii) the
amount on deposit in the Pre-Funding Account on such Distribution Date (after
taking into account any withdrawals to be made from the Pre-Funding Account
on
such Distribution Date pursuant to subsection 4.19(b)).
“Minimum
Required Hedge Reserve Amount” shall mean $5,000,000.
“Minimum
Seller Interest” for Series 2007-1 shall mean zero.
“Monthly
Interest” shall mean, with respect to any Distribution Date, the sum of (a)
the Class A Monthly Interest, the Class A Additional Interest, if any, and
the
unpaid Class A Deficiency Amount, if any; (b) the Class M Monthly Interest,
the
Class M Additional Interest, if any, and the unpaid Class M Deficiency Amount,
if any; (c) the Class B Monthly Interest, the Class B Additional Interest,
if
any, and the unpaid Class B Deficiency Amount, if any; (d) the
26
Class
C
Monthly Interest and the unpaid Class C Deficiency Amount, if any; and
(e) the Class D Monthly Interest and unpaid Class D Deficiency Amount, each
with respect to such Distribution Date.
“Net
Hedge Receipt” shall mean, for any Distribution Date, the sum of the Class A
Net Swap Receipt (if any), the Class M Net Swap Receipt (if any), the Class
B
Net Swap Receipt (if any) and the Class C Net Cap Receipt (if any), each for
such Distribution Date.
“Net
Swap Payment” shall mean, for any Distribution Date, the sum of the Class A
Net Swap Payment (if any), the Class M Net Swap Payment (if any) and the Class
B
Net Swap Payment (if any), each for such Distribution Date.
“Portfolio
Yield” shall mean, with respect to any Due Period, the annualized percentage
equivalent of a fraction, the numerator of which is an amount equal to the
result of (a) the Floating Allocation Percentage of Collections of Finance
Charge Receivables allocated to the Series 2007-1 Certificates for such Due
Period (including net investment earnings on funds on deposit in the Pre-Funding
Account and the Funding Period Reserve Account and certain other amounts that
are to be treated as Collections of Finance Charge Receivables in accordance
with the Agreement and this Supplement) plus (b) amounts withdrawn from
the Funding Period Reserve Account pursuant to subsection 4.20(c) and (c) any
Net Hedge Receipt for the related Distribution Date, such amount to be
calculated on a cash basis after subtracting the Investor Loss Amount and the
Series 2007-1 Investor Dilution Amount for such Due Period, and the denominator
of which is the outstanding principal amount of the Series 2007-1 Certificates
as of the last day of the preceding Due Period (or with respect to the initial
Due Period, the outstanding principal amount of the Series 2007-1 Certificates
on the Closing Date); it being understood that such fraction shall be annualized
by dividing the fraction obtained in accordance with the definition set forth
above by the number of days in such Due Period and multiplying such amount
by
365.
“Pre-Funded
Portion” shall mean (i) with respect to Class A Certificates, an amount
equal to the Class A Percentage times the amount of funds on deposit in the
Pre-Funding Account, (ii) with respect to Class M Certificates, an amount equal
to the Class M Percentage times the amount of funds on deposit in the
Pre-Funding Account, (iii) with respect to the Class B Certificates, an amount
equal to the Class B Percentage times the amount of funds on deposit in the
Pre-Funding Account, (iv) with respect to Class C Certificates, an amount equal
to the Class C Percentage times the amount of funds on deposit in the
Pre-Funding Account, (v) with respect to Class D-1 Certificates, an amount
equal
to the Class D-1 Percentage times the amount of funds on deposit in the
Pre-Funding Account, and (vi) with respect to the Class D-2 Certificates, an
amount equal to the Class D-2 Percentage times the amount of funds on deposit
in
the Pre-Funding Account.
“Pre-Funding
Account” shall mean the account established and maintained pursuant to
subsection 4.19(a).
“Pre-Funding
Interest Amount” shall mean, for any Distribution Date during the Funding
Period, the excess, if any, of:
27
(i) the
product of
(A)
the
result of the Monthly Interest for such Distribution Date, minus Net Hedge
Receipts received by the Trust, plus Net Swap Payments payable by the Trust
on
that Distribution Date,
multiplied
by
(B)
a
fraction, the numerator of which is equal to the daily average amount on deposit
in the Pre-Funding Account during the preceding Due Period, other than net
investment income, and the denominator of which is equal to the daily average
outstanding principal amount of the Series 2007-1 Certificates during the
preceding Due Period, over
(ii) the
investment earnings on funds in the Pre-Funding Account (net of investment
losses and expenses) for such Distribution Date.
“Principal
Allocation Percentage” shall mean, (a) with respect to any Due Period
(including any day within such Due Period) occurring prior to the Fixed
Principal Allocation Date, the Floating Allocation Percentage for such Due
Period, and (b) with respect to any Due Period (including any day within
such Due Period) occurring on or after the Fixed Principal Allocation Date,
the
Fixed Allocation Percentage for such Due Period.
“Principal
Shortfall” shall mean, as the context requires, any of the
following: (a) on any Distribution Date with respect to the
Controlled Amortization Period, (i) if such Distribution Date is on or prior
to
the Class A Expected Final Payment Date, the amount by which the Class A
Controlled Payment Amount for the prior Due Period exceeds the amount of
Available Principal Collections for such Distribution Date (excluding any
portion thereof attributable to Shared Principal Collections), (ii) if such
Distribution Date occurs after the Class A Expected Final Payment Date but
on or
prior to the Class M Expected Final Payment Date, the amount by which the Class
M Controlled Payment Amount for the prior Due Period exceeds the amount of
Available Principal Collections for such Distribution Date (excluding any
portion thereof attributable to Shared Principal Collections) and (iii) if
such
Distribution Date occurs after the Class M Expected Final Payment Date but
on or
prior to the Class B Expected Final Payment Date, the amount by which the Class
B Controlled Payment Amount for the prior Due Period exceeds the amount of
Available Principal Collections for such Distribution Date (excluding any
portion thereof attributable to Shared Principal Collections); (b) on the Class
C Expected Final Payment Date (if an Early Amortization Event with respect
to
Series 2007-1 has not occurred), the amount by which the Class C Investor
Interest exceeds the amount of Available Principal Collections for such
Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections); (c) on the Class D Expected Final Payment Date (if
an
Early Amortization Event with respect to Series 2007-1 has not occurred), the
amount by which the Class D Investor Interest exceeds the amount of Available
Principal Collections for such Distribution Date (excluding any portion thereof
attributable to Shared Principal Collections); and (d) on any Distribution
Date
with respect to the Early Amortization Period, the amount by which the Investor
Interest exceeds the Available Principal Collections for such Distribution
Date
(excluding any portion thereof attributable to Shared Principal
Collections).
28
“QIB”
shall mean a “qualified institutional buyer” (as defined in Rule 144A under the
Securities Act).
“Rating
Agency” shall mean Moody’s and Standard & Poor’s.
“Reallocated
Class B Principal Collections” shall mean, with respect to any Distribution
Date, Collections of Principal Receivables allocated to Series 2007-1 for the
preceding Due Period in an amount not to exceed the lesser of (i) the product
of
(A) the Class B Investor Allocation times (B) the Investor/Purchaser Percentage
times (C) the aggregate amount of Collections in respect of Principal
Receivables deposited in the Collection Account for the related Due Period;
and
(ii) the Class B Investor Interest after giving effect to any reduction of
the
Class B Investor Interest pursuant to subsection 4.10(c) on such Distribution
Date.
“Reallocated
Class C Principal Collections” shall mean, with respect to any Distribution
Date, Collections of Principal Receivables allocated to Series 2007-1 for the
preceding Due Period in an amount not to exceed the lesser of (i) the product
of
(A) the Class C Investor Allocation times (B) the Investor/Purchaser Percentage
times (C) the aggregate amount of Collections in respect of Principal
Receivables deposited in the Collection Account for the related Due Period;
and
(ii) the Class C Investor Interest after giving effect to any reduction of
the
Class C Investor Interest pursuant to subsection 4.10(d) on such Distribution
Date.
“Reallocated
Class D Principal Collections” shall mean, with respect to any Distribution
Date, the sum of Reallocated Class D-1 Principal Collections plus
Reallocated Class D-2 Principal Collections.
“Reallocated
Class D-1 Principal Collections” shall mean, with respect to any
Distribution Date, Collections of Principal Receivables allocated to Series
2007-1 for the preceding Due Period in an amount not to exceed the lesser of
(i)
the product of (A) the Class D-1 Investor Allocation times (B) the
Investor/Purchaser Percentage times (C) the aggregate amount of Collections
in
respect of Principal Receivables deposited in the Collection Account for the
related Due Period; and (ii) the Class D-1 Investor Interest after giving effect
to any reduction of the Class D-1 Investor Interest pursuant to subsection
4.10(e) on such Distribution Date.
“Reallocated
Class D-2 Principal Collections” shall mean, with respect to any
Distribution Date, Collections of Principal Receivables allocated to Series
2007-1 for the preceding Due Period in an amount not to exceed the lesser of
(i)
the product of (A) the Class D-2 Investor Allocation times (B) the
Investor/Purchaser Percentage times (C) the aggregate amount of Collections
in
respect of Principal Receivables deposited in the Collection Account for the
related Due Period; and (ii) the Class D-2 Investor Interest after giving effect
to any reductions of the Class D-2 Investor Interest pursuant to subsection
4.10(e) on such Distribution Date.
“Reallocated
Class M Principal Collections” shall mean, with respect to any Distribution
Date, Collections of Principal Receivables allocated to Series 2007-1 for the
preceding Due Period in an amount not to exceed the lesser of (i) the product
of
(A) the Class M Investor Allocation times (B) the Investor/Purchaser Percentage
times (C) the aggregate amount of
29
Collections
in respect of Principal Receivables deposited in the Collection Account for
the
related Due Period; and (ii) the Class M Investor Interest after giving effect
to any reduction of the Class M Investor Interest pursuant to subsection 4.10(b)
on such Distribution Date.
“Reallocated
Principal Collections” shall mean the sum of (a) Reallocated Class M
Principal Collections, (b) Reallocated Class B Principal Collections, (c)
Reallocated Class C Principal Collections and (d) Reallocated Class D
Principal Collections.
“Reference
Banks” shall mean four major banks in the London interbank market selected
by the Servicer.
“Regulation
S Book-Entry Certificate” shall have the meaning specified in subsection
15(b) of this Supplement.
“Regulation
S Permanent Book-Entry Certificate” shall have the meaning specified in
subsection 15(b) of this Supplement.
“Regulation
S Temporary Book-Entry Certificate” shall have the meaning specified in
subsection 15(b) of this Supplement.
“Reset
Date” shall mean the occurrence of any Addition Date, any Removal Date or
any day on which the Investor Interest is increased pursuant to Section 4.21
or
the outstanding principal amount of the Series 2007-1 Certificates is decreased
pursuant to Section 4.9(h).
“Restricted
Book-Entry Certificate” shall have the meaning specified in Section
15(b).
“Reuters
Screen LIBOR01 Page” shall mean the display page currently so designated on
the Reuters Monitor Money Rates (or such other page as may replace that page
on
that service, or such other service as may be the successor information vendor
for purposes of displaying comparable rates or prices.)
“Revolving
Period” shall mean the period from and including the Closing Date to, but
not including, the Fixed Principal Allocation Date.
“Series
2007-1” shall mean the Series of the Charming Shoppes Master Trust
represented by the Investor Certificates.
“Series
2007-1 Certificateholder” shall mean the Holder of record of any Series
2007-1 Certificate.
“Series
2007-1 Certificates” shall mean the Class A Certificates, the Class M
Certificates, the Class B Certificates, the Class C Certificates and the
Class D Certificates.
“Series
2007-1 Early Amortization Event” shall have the meaning specified in Section
10 of this Supplement.
“Series
2007-1 Investor Dilution Amount” shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Series Percentage
for the related Due Period and
30
(b)
any
Series Dilution Amount remaining after giving effect to any addition of Accounts
and other actions taken pursuant to Sections 4.3(d) and 2.6.
“Series
2007-1 Investor Monthly Servicing Fee” shall have the meaning specified in
Section 3 of this Supplement.
“Series
2007-1 Termination Date” shall mean the earliest to occur of (a) the
Distribution Date on which the Series 2007-1 Certificates are paid in full,
(b)
the September 2017 Distribution Date or (c) the date of termination of the
Trust
pursuant to Section 12.1 of the Agreement.
“Series
2007-1 Unfunded Dilution Amount” shall mean, on any Distribution Date, an
amount equal to any unfunded Series 2007-1 Investor Dilution Amount remaining
after application of Class A Available Funds pursuant to subsection 4.9(a)(iv)
and Excess Spread and Shared Excess Finance Charge Collections in accordance
with Section 4.11.
“Series
Investor Interest” shall mean, on any date of determination, an amount equal
to the sum of (i) the Class A Investor Interest, (ii) the Class M Investor
Interest, (iii) the Class B Investor Interest, (iv) the Class C Investor
Interest and (v) the Class D Investor Interest, each as of such
date.
“Series
Servicing Fee Percentage” shall mean 2.0%.
“Shared
Excess Finance Charge Collections” shall mean, with respect to any
Distribution Date, as the context requires, either (a) the aggregate amount
of
Collections of Finance Charge Receivables allocated to the Series 2007-1
Certificates but available to cover Finance Charge Shortfalls for other Series
in Group One, if any, or (b) the aggregate amount of Collections of Finance
Charge Receivables and other amounts allocable to other Series in Group One
in
excess of the amounts necessary to make required payments with respect to such
Series, if any, and available to cover any Finance Charge Shortfall with respect
to the Series 2007-1 Certificates as described in Section 4.14.
“Shared
Principal Collections” shall mean, as the context requires, either (a) the
amount allocated to the Series 2007-1 Certificates which may be applied to
cover
Principal Shortfalls with respect to other outstanding Series in Group One,
or
(b) the amounts allocated to the Investor Certificates of other Series in Group
One that the applicable Supplements for such Series specify are to be treated
as
“Shared Principal Collections” and which may be applied to cover Principal
Shortfalls with respect to the Series 2007-1 Certificates pursuant to Section
4.15.
“Specified
Days” shall mean, with respect to any Interest Period, (a) 30 (or, in the
case of the first Interest Period, the number of days in such Interest Period),
when used with reference to the calculation of interest for any Class A
Certificates, Class M Certificates, Class B Certificates or Class D Certificates
that bear interest at a fixed rate during such Interest Period and (b) the
number of days in such Interest Period, when used with reference to the
calculation of interest for any Class of Certificates that bears interest at
a
floating rate during such Interest Period.
“subclass”
shall mean (a) with respect to the Class A Certificates, the Class A-1
Certificates and the Class A-2 Certificates, (b) with respect to the Class
M
Certificates, the Class
31
M-1
Certificates and the Class M-2 Certificates, (c) with respect to the Class
B
Certificates, the Class B-1 Certificates and the Class B-2 Certificates, and
(d)
with respect to the Class D Certificates, the Class D-1 Certificates and the
Class D-2 Certificates.
“Subperiod”
shall mean, with respect to a Due Period in which one or more Reset Dates occur
(the “Subject Due Period”), any of the following:
(i) the
period from and including the last day of the prior Due Period to but excluding
the first Reset Date in the Subject Due Period,
(ii) the
period from and including the last Reset Date in the Subject Due Period to
and
including the last day of the Subject Due Period, and
(iii) the
period, if any, from and including one Reset Date in the Subject Due Period
to
but excluding the next Reset Date.
SECTION
3. Servicing
Compensation. The share of the Monthly Servicing Fee allocable to
Series 2007-1 (the “Series 2007-1 Investor Monthly Servicing Fee”) with
respect to any Due Period shall be equal to one-twelfth of the product of
(i) the Series Servicing Fee Percentage and (ii) (a) the Investor Interest
as of the last day of such Due Period minus (b) the product of the amount,
if
any, on deposit in the Excess Funding Account as of the last day of such Due
Period and the Principal Allocation Percentage for such Due Period; provided,
however, that with respect to the initial Due Period ending after the Closing
Date, the Series 2007-1 Investor Monthly Servicing Fee shall be adjusted based
on the ratio of the number of days in the initial Due Period to 30;
provided, further, that if a Successor Servicer that is not an
Affiliate of the Seller is appointed, the Series 2007-1 Investor Servicing
Fee
shall be such amount as may be agreed upon in writing between such Successor
Servicer and the Trustee, so long as the Trustee shall have received written
confirmation from each of the Rating Agencies then rating any Class of Series
2007-1 Certificates that such change would not result in a reduction or
withdrawal by such Rating Agency of its rating of any Class of the Series 2007-1
Certificates. The share of the Series 2007-1 Investor Monthly
Servicing Fee allocable to the Class A Investor Interest with respect to any
Due
Period (the “Class A Servicing Fee”) shall be equal to the product of (i)
the Class A Floating Allocation, and (ii) the Series 2007-1 Investor Monthly
Servicing Fee for such Due Period. The share of the Series 2007-1
Investor Monthly Servicing Fee allocable to the Class M Investor Interest with
respect to any Due Period (the “Class M Servicing Fee”) shall be equal to
the product of (i) the Class M Floating Allocation and (ii) the Series 2007-1
Investor Monthly Servicing Fee for such Due Period. The share of the
Series 2007-1 Investor Monthly Servicing Fee allocable to the Class B Investor
Interest with respect to any Due Period (the “Class B Servicing Fee”)
shall be equal to the product of (i) the Class B Floating Allocation and (ii)
the Series 2007-1 Investor Monthly Servicing Fee for such Due
Period. The share of the Series 2007-1 Investor Monthly Servicing Fee
allocable to the Class C Investor Interest with respect to any Due Period (the
“Class C Servicing Fee”) shall be equal to the product of (i) the Class C
Floating Allocation and (ii) the Series 2007-1 Investor Monthly Servicing Fee
for such Due Period. The share of the Series 2007-1 Investor Monthly
Servicing Fee allocable to the Class D-1 Investor Interest with respect to
any
Due Period (the
32
“Class
D-1 Servicing Fee”) shall be equal to the product of (i) the Class D-1
Floating Allocation and (ii) the Series 2007-1 Investor Monthly Servicing Fee
for such Due Period. The share of the Series 2007-1 Investor Monthly
Servicing Fee allocable to the Class D-2 Investor Interest with respect to
any
Due Period (the “Class D-2 Servicing Fee”) shall be equal to the product
of (i) the Class D-2 Floating Allocation and (ii) the Series 2007-1 Investor
Monthly Servicing Fee for such Due Period.
Except
as
specifically provided above, the Monthly Servicing Fee shall be paid by the
cash
flows from the Trust allocated to the Seller or the Certificateholders of other
Series (as provided in the related Supplements or Receivables Purchase
Agreements) and in no event shall the Trust, the Trustee or the Series 2007-1
Certificateholders be liable therefor. The Class A Servicing Fee
shall be payable to the Servicer solely to the extent amounts are available
for
distribution in respect thereof pursuant to subsections 4.9(a)(ii) and
4.11(a). The Class M Servicing Fee shall be payable to the
Servicer solely to the extent amounts are available for distribution in respect
thereof pursuant to subsections 4.9(b)(ii) and 4.11(c). The
Class B Servicing Fee shall be payable solely to the extent amounts are
available for distribution in respect thereof pursuant to subsections 4.9(c)(ii)
and 4.11(e). The Class C Servicing Fee shall be payable solely to the
extent amounts are available for distribution in respect thereof pursuant to
subsections 4.9(d)(i) and 4.11(g). The Class D Servicing Fee shall be
payable solely to the extent amounts are available for distribution in respect
thereof pursuant to subsections 4.9(e)(i) and 4.11(m).
SECTION
4. Reassignment
and Transfer Terms. The Series 2007-1 Certificates shall be
subject to retransfer to the Seller at its option, in accordance with the terms
specified in subsection 12.2(a) of the Agreement, on any Distribution Date
on or
after the Distribution Date on which the Series Investor Interest is less than
or equal to 10% of the Series Investor Interest on the Funding Period
Termination Distribution Date (after giving effect to any increase in the Series
Investor Interest on such date). The deposit required in connection
with any such repurchase shall be equal to the Series Investor Interest plus
accrued and unpaid interest on the Series 2007-1 Certificates through the day
preceding the Distribution Date on which the repurchase occurs.
SECTION
5. Delivery
and Payment for the Series 2007-1 Certificates. The Seller shall
execute and deliver the Series 2007-1 Certificates to the Trustee for
authentication in accordance with Section 6.1 of the Agreement. The
Trustee shall deliver the Series 2007-1 Certificates when authenticated in
accordance with Section 6.2 of the Agreement.
SECTION
6. Depository;
Form of Delivery of Series 2007-1 Certificates.
(a) The
Class
A Certificates, the Class M Certificates and the Class B Certificates shall
be
delivered as Book-Entry Certificates as provided in Sections 6.2 and 6.10 of
the
Agreement. The Class C Certificates and the Class D Certificates
shall be delivered as Definitive Certificates as provided in Sections 6.2 and
6.12 of the Agreement.
(b) The
Depository for Series 2007-1 shall be The Depository Trust Company, and the
Class A Certificates, the Class M Certificates and Class B Certificates
shall be initially registered in the name of Cede & Co., its
nominee.
33
SECTION
7. Interest
Rate Hedge Agreements. (a) The Trustee shall, on behalf of the
Trust, enter into a Class A Swap, a Class M Swap, a Class B Swap and a Class
C
Cap on the Closing Date for the benefit of the Class A Certificateholders,
the
Class M Certificateholders, the Class B Certificateholders and the Class C
Certificateholders. The notional amount under each Interest Rate
Hedge Agreement for any Interest Period shall be determined prior to the
issuance of the Series 2007-1 Certificates and shall be set forth in a schedule
to the initial Interest Rate Hedge Agreement for the related
Class. If the Lane ▇▇▇▇▇▇ Portfolio acquisition does not occur prior
to the Lane ▇▇▇▇▇▇ Portfolio Distribution Date, the notional amount of each
Interest Rate Hedge Agreement shall be adjusted to give effect to the payments
made to the holders of the Series 2007-1 Certificates on the Lane ▇▇▇▇▇▇
Portfolio Distribution Date. If any of the initial Interest Rate
Hedge Agreements is terminated and replaced, the replacement Interest Rate
Hedge
Agreement must have the same notional amount with respect to the periods covered
by the replacement Interest Rate Hedge Agreement unless the Rating Agency
Condition shall have been satisfied with respect to a different notional
amount.
Class
A
Net Swap Receipts shall be deposited by the Trustee in the Collection Account
on
the date such Class A Net Swap Receipts are paid and shall be treated as
Collections of Finance Charge Receivables allocated to the Series 2007-1
Certificates and available to be applied as Class A Available
Funds. Class M Net Swap Receipts shall be deposited by the Trustee in
the Collection Account on the date such Class M Net Swap Receipts are paid
and
shall be treated as Collections of Finance Charge Receivables allocated to
the
Series 2007-1 Certificates and available to be applied as Class M Available
Funds. Class B Net Swap Receipts shall be deposited by the Trustee in
the Collection Account on the date such Class B Net Swap Receipts are paid
and
shall be treated as Collections of Finance Charge Receivables allocated to
the
Series 2007-1 Certificates and available to be applied as Class B Available
Funds. Class C Net Cap Receipts shall be deposited by the Trustee in
the Collection Account on the date such Class C Net Cap Receipts are paid and
shall be treated as Collections of Finance Charge Receivables allocated to
the
Series 2007-1 Certificates and available to be applied as Class C Available
Funds.
On
any
Distribution Date when the Class A Net Swap Payment, the Class M Net Swap
Payment or the Class B Net Swap Payment is greater than zero, the Trustee shall
pay such Class A Net Swap Payment, Class M Net Swap Payment or Class B Net
Swap
Payment from the Class A Available Funds, the Class M Available Funds and the
Class B Available Funds, respectively, as provided in Sections 4.9(a), 4.9(b)
and 4.9(c). If the Class A Available Funds, the Class M Available
Funds or the Class B Available Funds are insufficient to pay the Class A Net
Swap Payment, the Class M Net Swap Payment and the Class B Net Swap Payment,
respectively, the Class A Net Swap Payment, the Class M Net Swap Payment, and
the Class B Net Swap Payment will be paid from the Excess Spread and Shared
Excess Finance Charge Collections, as provided in Sections 4.11(a), 4.11(c),
4.11(e) and 4.14(b).
(b) Subject
to satisfaction of the Rating Agency Condition, the Servicer may at any time
obtain a replacement Interest Rate Hedge Agreement.
SECTION
8. Article
IV of Agreement. Sections 4.1, 4.2 and 4.3 of the Agreement shall
be read in their entirety as provided in the Agreement. Article IV of
the
34
Agreement
(except for Sections 4.1, 4.2 and 4.3 thereof) shall read in its entirety as
follows and shall be applicable only to the Series 2007-1
Certificates.
ARTICLE
IV.
RIGHTS
OF CERTIFICATEHOLDERS AND RECEIVABLES
PURCHASERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION
4.4. Rights of Series 2007-1
Certificateholders. The Series 2007-1 Certificates shall
represent undivided interests in the Trust, consisting of the right to receive,
to the extent necessary to make the required payments with respect to such
Series 2007-1 Certificates at the times and in the amounts specified in this
Agreement, (a) the Floating Allocation Percentage and Principal Allocation
Percentage (as applicable from time to time) of Collections received with
respect to the Receivables (including certain other amounts that are to be
treated as collections of Receivables in accordance with the terms of this
Agreement), (b) any other funds on deposit (or to be deposited) in the
Collection Account or the Excess Funding Account allocated to Series 2007-1
and
(c) any other amounts that pursuant to this Agreement or any Supplement are
allocable to Series 2007-1. The Class D-2 Certificates shall be
subordinate to the Class D-1 Certificates as described herein and in the Class
D
Purchase Agreement. The Class D Certificates shall be subordinate to
the Class A Certificates, the Class M Certificates, the Class B
Certificates and the Class C Certificates. The Class C Certificates
shall be subordinate to the Class A Certificates, the Class M Certificates
and
the Class B Certificates. The Class B-1 Certificates shall be pari
passu with the Class B-2 Certificates. The Class B Certificates shall
be subordinate to the Class A Certificates and the Class M
Certificates. The Class M-1 Certificates shall be pari passu with the
Class M-2 Certificates. The Class M Certificates will be subordinate
to the Class A Certificates. The Class A-1 Certificates shall be pari
passu with the Class A-2 Certificates. The Exchangeable Seller
Certificate shall not represent any interest in the Collection Account or the
Excess Funding Account except as specifically provided in this
Article IV.
SECTION
4.5. Allocations.
(a) Allocations
During the Revolving Period. During the Revolving Period, the
Servicer shall, prior to the close of business on the day any Collections are
deposited in the Collection Account, allocate to the Series 2007-1
Certificateholders and the Hedge Counterparty, the following amounts as set
forth below:
(i) An
amount equal to the product of (A) the Floating Allocation Percentage on such
date and (B) the aggregate amount of Collections processed in respect of Finance
Charge Receivables on such date, to be applied in accordance with Sections
4.9
and 4.11.
(ii) If
the Series 2002-1 Certificates have been paid in full, an amount equal to the
product of (A) the Investor/Purchaser Percentage on such date and (B) the
aggregate amount of Collections processed in respect of Principal Receivables
on
such date, which amount shall be, first, held in the Collection Account to
the
extent of amounts to be distributed pursuant to Section 4.9(f)(i) on the next
Distribution Date, second, if any other Principal Sharing Series is outstanding
and in its accumulation period or amortization
35
period,
held in the Collection Account for application, to the extent necessary, as
Shared Principal Collections to other Principal Sharing Series on the related
Distribution Date, third, deposited to the Excess Funding Account to the extent
necessary so that the Seller Interest is not less than the Minimum Seller
Interest and, fourth, paid to the Holders of the Exchangeable Seller
Certificate. With respect to each Due Period falling in the Revolving
Period, to the extent that Collections of Principal Receivables allocated to
the
Series 2007-1 Certificateholders pursuant to this subsection are paid to any
Holder of the Exchangeable Seller Certificate, such Holder shall make an amount
equal to the Reallocated Principal Collections for the related Distribution
Date
available on that Distribution Date for application in accordance with Section
4.12; provided, however, that if such Holder fails to make such funds available,
then an amount of Collections of Principal Receivables allocated to Series
2007-1 and on deposit in the Collection Account equal to that deficiency shall
be treated as Reallocated Principal Collections for application in accordance
with Section 4.12, prior to any other application of such
Collections.
(b) Allocations
During the Controlled Amortization Period. During the Controlled
Amortization Period, the Servicer shall, prior to the close of business on
the
day any Collections are deposited in the Collection Account, allocate to the
Series 2007-1 Certificateholders and the Hedge Counterparty, the following
amounts as set forth below:
(i) An
amount equal to the product of (A) the Floating Allocation Percentage on such
date and (B) the aggregate amount of Collections processed in respect of Finance
Charge Receivables on such date, to be applied in accordance with Sections
4.9
and 4.11.
(ii) An
amount equal to the product of (A) the Investor/Purchaser Percentage on such
date and (B) the aggregate amount of Collections processed in respect of
Principal Receivables on such date, which amount shall be, first, held in the
Collection Account to the extent of amounts to be distributed pursuant to
Section 4.9(g) on the next Distribution Date, and, second, if any other
Principal Sharing Series is outstanding and in its accumulation period or
amortization period, held in the Collection Account for application, to the
extent necessary, as Shared Principal Collections to other Principal Sharing
Series on the next Distribution Date, third, deposited to the Excess Funding
Account to the extent necessary so that the Seller Interest is not less than
the
Minimum Seller Interest and, fourth, paid to the Holder of the Exchangeable
Seller Certificate, provided that, upon written notice to the Servicer
and the Trustee, such Holder may specify that any such amount to be distributed
to it after the Class A Investor Interest has been paid in full shall be
retained in the Collection Account for distribution pursuant to Section 4.9(g)
as Available Principal Collections on the Distribution Date following the next
Distribution Date. With respect to each Due Period falling in the
Controlled Amortization Period, to the extent that Collections of Principal
Receivables allocated to the Series 2007-1 Certificateholders pursuant to this
subsection are paid to any Holder of the Exchangeable Seller Certificate, such
Holder shall make an amount equal to the Reallocated Principal Collections
for
the related Distribution Date available on that Distribution Date for
application in accordance with Section 4.12; provided, however, that if such
Holder fails to make such funds available, then an amount of Collections on
Principal Receivables equal to that deficiency shall be treated as Reallocated
Principal
36
Collections
for application in accordance with Section 4.12, prior to any other application
of the amounts in the Collection Account.
(c) Allocations
During the Early Amortization Period. During the Early
Amortization Period, the Servicer shall, prior to the close of business on
the
day any Collections are deposited in the Collection Account, allocate to the
Series 2007-1 Certificateholders and the Hedge Counterparty, the following
amounts as set forth below:
(i) An
amount equal to the product of (A) the Floating Allocation Percentage on such
date and (B) the aggregate amount of such Collections processed in respect
of
Finance Charge Receivables on such date, to be applied in accordance with
Sections 4.9 and 4.11.
(ii) An
amount equal to the product of (A) the Class D-2 Investor Allocation on such
date, (B) the Investor/Purchaser Percentage on such date and (C) the aggregate
amount of Collections processed in respect of Principal Receivables on such
date, to be applied first in accordance with Section 4.12(b)(i) and then in
accordance with subsection 4.9(g).
(iii) An
amount equal to the product of (A) the Class D-1 Investor Allocation on such
date, (B) the Investor/Purchaser Percentage on such date and (C) the aggregate
amount of Collections processed in respect of Principal Receivables on such
date, to be applied first in accordance with Section 4.12(b)(ii) and then in
accordance with subsection 4.9(g).
(iv) An
amount equal to the product of (A) the Class C Investor Allocation on such
date, (B) the Investor/Purchaser Percentage on such date and (C) the
aggregate amount of Collections processed in respect of Principal Receivables
on
such date, to be applied first in accordance with Section 4.12(b)(iii) and
then
in accordance with subsection 4.9(g).
(v) An
amount equal to the product of (A) the Class B Investor Allocation on such
date,
(B) the Investor/Purchaser Percentage on such date and (C) the aggregate amount
of Collections processed in respect of Principal Receivables on such date,
to be applied first in accordance with Section 4.12(b)(iv) and then in
accordance with subsection 4.9(g).
(vi) An
amount equal to the product of (A) the Class M Investor Allocation on such
date,
(B) the Investor/Purchaser Percentage on such date and (C) the aggregate amount
of Collections processed in respect of Principal Receivables on such date,
to be applied first in accordance with Section 4.12(b)(v) and then in
accordance with subsection 4.9(g).
(vii) An
amount equal to the product of (A) the Class A Investor Allocation on such
date,
(B) the Investor/Purchaser Percentage on such date and (C) the aggregate amount
of Collections processed in respect of Principal Receivables on such date,
to be
applied in accordance with subsection 4.9(g).
37
SECTION
4.6. Determination of Monthly Interest.
(a) The
amount of monthly interest distributable in respect of the Class A-1
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class A-1 Certificate Rate in effect
with respect to the related Interest Period, and (iii) the outstanding
principal amount of the Class A-1 Certificates determined as of the Record
Date
preceding such Distribution Date (the “Class A-1 Monthly Interest”);
provided, that in addition to Class A-1 Monthly Interest an amount
equal
to the amount of any unpaid Class A-1 Deficiency Amounts, as defined below,
plus
an amount equal to the product of (A) a fraction, the numerator of which is
the Specified Days and the denominator of which is 360, (B) the sum of the
Class A-1 Certificate Rate in effect with respect to the related Interest
Period, and 1.0% per annum, and (C) any Class A-1 Deficiency Amounts from the
prior Distribution Date, as defined below, or the portion thereof which has
not
theretofore been paid to Class A-1 Certificateholders (the “Class A-1
Additional Interest”), shall also be distributable in respect of the Class
A-1 Certificates. The “Class A-1 Deficiency Amount” for any
Distribution Date shall be equal to the excess, if any, of the aggregate amount
accrued pursuant to this subsection 4.6(a) for all Interest Periods prior to
the
immediately preceding Interest Period, over the amount actually paid to Class
A-1 Certificateholders in respect of such amounts on all prior Distribution
Dates.
(b) The
amount of monthly interest distributable in respect of the Class A-2
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class A-2 Certificate Rate, and (iii)
the
outstanding principal amount of the Class A-2 Certificates determined as of
the
Record Date preceding such Distribution Date (the “Class A-2 Monthly
Interest”); provided, that in addition to Class A-2 Monthly Interest
an amount equal to the amount of any unpaid Class A-2 Deficiency Amounts, as
defined below, plus an amount equal to the product of (A) a fraction, the
numerator of which is the Specified Days and the denominator of which is 360,
(B) the sum of the Class A-2 Certificate Rate and 1.0% per annum, and (C) any
Class A-2 Deficiency Amounts from the prior Distribution Date, as defined below,
or the portion thereof which has not theretofore been paid to Class A-2
Certificateholders (the “Class A-2 Additional Interest”), shall also be
distributable in respect of the Class A-2 Certificates. The “Class
A-2 Deficiency Amount” for any Distribution Date shall be equal to the
excess, if any, of the aggregate amount accrued pursuant to this subsection
4.6(b) for all Interest Periods prior to the immediately preceding Interest
Period, over the amount actually paid to Class A-2 Certificateholders in respect
of such amounts on all prior Distribution Dates.
(c) The
amount of monthly interest distributable in respect of the Class M-1
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class M-1 Certificate Rate in effect
with
respect to the related Interest Period, and (iii) the outstanding principal
amount of the Class M-1 Certificates determined as of the Record Date preceding
such Distribution Date (the “Class M-1 Monthly Interest”);
provided, that in addition to the Class M-1 Monthly Interest an amount
equal to the amount of any unpaid Class M-1 Deficiency Amounts, as defined
below, plus an amount equal to the product of (A) a fraction, the numerator
of which is the Specified Days and the denominator of which is 360, (B) the
sum of the Class M-1 Certificate Rate in effect with respect to the related
Interest Period, and 1.0% per annum, and (C)
38
any
Class
M-1 Deficiency Amount from the prior Distribution Date, as defined below, or
the
portion thereof which has not theretofore been paid to Class M-1
Certificateholders (the “Class M-1 Additional Interest”), shall also be
distributable in respect of the Class M-1 Certificates. The “Class
M-1 Deficiency Amount” for any Distribution Date shall be equal to the
excess, if any, of the aggregate amount accrued pursuant to this subsection
4.6(c) for all Interest Periods prior to the immediately preceding Interest
Period, over the amount actually paid to the Class M-1 Certificateholders in
respect of such amounts on all prior Distribution Dates.
(d) The
amount of monthly interest distributable in respect of the Class M-2
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class M-2 Certificate Rate, and (iii)
the
outstanding principal amount of the Class M-2 Certificates determined as of
the
Record Date preceding such Distribution Date (the “Class M-2 Monthly
Interest”); provided, that in addition to Class M-2 Monthly Interest
an amount equal to the amount of any unpaid Class M-2 Deficiency Amounts, as
defined below, plus an amount equal to the product of (A) a fraction, the
numerator of which is the Specified Days and the denominator of which is 360,
(B) the sum of the Class M-2 Certificate Rate and 1.0% per annum, and (C) any
Class M-2 Deficiency Amounts from the prior Distribution Date, as defined below,
or the portion thereof which has not theretofore been paid to Class M-2
Certificateholders (the “Class M-2 Additional Interest”), shall also be
distributable in respect of the Class M-2 Certificates. The “Class
M-2 Deficiency Amount” for any Distribution Date shall be equal to the
excess, if any, of the aggregate amount accrued pursuant to this subsection
4.6(d) for all Interest Periods prior to the immediately preceding Interest
Period, over the amount actually paid to Class M-2 Certificateholders in respect
of such amounts on all prior Distribution Dates.
(e) The
amount of monthly interest distributable in respect of the Class B-1
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class B-1 Certificate Rate in effect
with
respect to the related Interest Period, and (iii) the outstanding principal
amount of the Class B-1 Certificates determined as of the Record Date preceding
such Distribution Date (the “Class B-1 Monthly Interest”);
provided, that in addition to the Class B-1 Monthly Interest an amount
equal to the amount of any unpaid Class B-1 Deficiency Amounts, as defined
below, plus an amount equal to the product of (A) a fraction, the numerator
of which is the Specified Days and the denominator of which is 360, (B) the
sum of the Class B-1 Certificate Rate in effect with respect to the related
Interest Period, and 1.0% per annum, and (C) any Class B-1 Deficiency Amount
from the prior Distribution Date, as defined below, or the portion thereof
which
has not theretofore been paid to Class B-1 Certificateholders (the “Class B-1
Additional Interest”), shall also be distributable in respect of the Class
B-1 Certificates. The “Class B-1 Deficiency Amount” for any
Distribution Date shall be equal to the excess, if any, of the aggregate amount
accrued pursuant to this subsection 4.6(e) for all Interest Periods prior to
the
immediately preceding Interest Period, over the amount actually paid to the
Class B-1 Certificateholders in respect of such amounts on all prior
Distribution Dates.
(f) The
amount of monthly interest distributable in respect of the Class B-2
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class B-2 Certificate Rate, and (iii)
the outstanding principal amount of the Class B-2
39
Certificates
determined as of the Record Date preceding such Distribution Date (the “Class
B-2 Monthly Interest”); provided, that in addition to Class B-2
Monthly Interest an amount equal to the amount of any unpaid Class B-2
Deficiency Amounts, as defined below, plus an amount equal to the product of
(A)
a fraction, the numerator of which is the Specified Days and the denominator
of
which is 360, (B) the sum of the Class B-2 Certificate Rate and 1.0% per annum,
and (C) any Class B-2 Deficiency Amounts from the prior Distribution Date,
as
defined below, or the portion thereof which has not theretofore been paid to
Class B-2 Certificateholders (the “Class B-2 Additional Interest”), shall
also be distributable in respect of the Class B-2 Certificates. The
“Class B-2 Deficiency Amount” for any Distribution Date shall be equal to
the excess, if any, of the aggregate amount accrued pursuant to this subsection
4.6(f) for all Interest Periods prior to the immediately preceding Interest
Period, over the amount actually paid to Class B-2 Certificateholders in respect
of such amounts on all prior Distribution Dates.
(g) The
amount of monthly interest distributable in respect of the Class C Certificates
on each Distribution Date shall be an amount equal to the product of (i) a
fraction, the numerator of which is the Specified Days and the denominator
of
which is 360, (ii) the Class C Certificate Rate in effect with respect to the
related Interest Period, and (iii) the sum of the Class C Investor Interest
plus
the applicable Pre-Funded Portion, each determined as of the Record Date
preceding such Distribution Date (the “Class C Monthly Interest”);
provided, that in addition to the Class C Monthly Interest an amount
equal to any unpaid Class C Deficiency Amounts, as defined below, shall also
be
distributed to the Class C Certificateholders. The “Class C
Deficiency Amount” for any Distribution Date shall be equal to the excess,
if any, of the aggregate amount accrued pursuant to this subsection 4.6(g)
for
all Interest Periods prior to the immediately preceding Interest Period, over
the amount actually paid to the Class C Certificateholders in respect of such
amounts on all prior Distribution Dates.
(h) The
amount of monthly interest distributable in respect of the Class D-1
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class D-1 Certificate Rate in effect
with
respect to the related Interest Period, and (iii) the sum of the Class D-1
Investor Interest plus the applicable Pre-Funded Portion, each determined as
of
the Record Date preceding such Distribution Date (the “Class D-1 Monthly
Interest”); provided, that in addition to the Class D-1 Monthly
Interest an amount equal to any unpaid Class D-1 Deficiency Amounts, as defined
below, shall also be distributed to the Class D-1
Certificateholders. The “Class D-1 Deficiency Amount” for any
Distribution Date shall be equal to the excess, if any, of the aggregate amount
accrued pursuant to this subsection 4.6(h) for all Interest Periods prior to
the
immediately preceding Interest Period, over the amount actually paid to the
Class D-1 Certificateholders in respect of such amounts on all prior
Distribution Dates.
(i) The
amount of monthly interest distributable in respect of the Class D-2
Certificates on each Distribution Date shall be an amount equal to the product
of (i) a fraction, the numerator of which is the Specified Days and the
denominator of which is 360, (ii) the Class D-2 Certificate Rate in effect
with
respect to the related Interest Period, and (iii) the sum of the Class D-2
Investor Interest plus the applicable Pre-Funded Portion, each determined as
of
the Record Date preceding such Distribution Date (the “Class D-2 Monthly
Interest”); provided, that in addition to the Class D-2 Monthly
Interest an amount equal to any unpaid Class D-2 Deficiency Amounts, as defined
below, shall also be distributed to the Class D-2
40
Certificateholders. The
“Class D-2 Deficiency Amount” for any Distribution Date shall be equal to
the excess, if any, of the aggregate amount accrued pursuant to this subsection
4.6(i) for all Interest Periods prior to the immediately preceding Interest
Period, over the amount actually paid to the Class D-2 Certificateholders in
respect of such amounts on all prior Distribution Dates.
SECTION
4.7. Determination of Monthly Principal.
(a) The
amount of monthly principal distributable with respect to the Class A
Certificates on each Distribution Date (the “Class A Monthly Principal”),
beginning with the Distribution Date in the month following the month in which
the Controlled Amortization Period or, if earlier, the Early Amortization
Period, begins, shall be equal to the least of (i) the Available Principal
Collections with respect to such Distribution Date, (ii) for each
Distribution Date with respect to the Controlled Amortization Period prior
to
the Class A Expected Final Payment Date, the Class A Controlled Payment Amount
for the Due Period related to such Distribution Date and (iii) the Class A
Investor Interest on such Distribution Date (after taking into account any
adjustments to be made on such Distribution Date pursuant to Section
4.10).
(b) The
amount of monthly principal distributable with respect to the Class M
Certificates on each Distribution Date (the “Class M Monthly Principal”)
beginning with the Distribution Date immediately following the Distribution
Date
on which the Class A Investor Interest has been paid in full, and during the
Early Amortization Period, beginning with the Distribution Date on which the
Class A Investor Interest has been paid in full (in either case, the “Class M
Principal Commencement Date”), shall be an amount equal to the least of
(i) the Available Principal Collections with respect to such Distribution
Date (minus the portion of such Available Principal Collections applied to
Class
A Monthly Principal on such Distribution Date), (ii) for each Distribution
Date
with respect to the Controlled Amortization Period beginning on the Class M
Principal Commencement Date but prior to the Class M Expected Final Payment
Date, the Class M Controlled Payment Amount for the Due Period related to such
Distribution Date and (iii) the Class M Investor Interest (after taking into
account any adjustments to be made on such Distribution Date pursuant to
Sections 4.10 and 4.12) on such Distribution Date.
(c) The
amount of monthly principal distributable with respect to the Class B
Certificates on each Distribution Date (the “Class B Monthly Principal”)
beginning with the Distribution Date immediately following the Distribution
Date
on which the Class A Investor Interest and the Class M Investor Interest have
been paid in full, and during the Early Amortization Period, beginning with
the
Distribution Date on which the Class A Investor Interest and the Class M
Investor Interest have been paid in full (in either case, the “Class B
Principal Commencement Date”), shall be an amount equal to the least of
(i) the Available Principal Collections with respect to such Distribution
Date (minus the portion of such Available Principal Collections applied to
Class
A Monthly Principal and Class M Monthly Principal on such Distribution Date),
(ii) for each Distribution Date with respect to the Controlled Amortization
Period beginning on the Class B Principal Commencement Date but prior to the
Class B Expected Final Payment Date, the Class B Controlled Payment Amount
for
the Due Period related to such Distribution Date and (iii) the Class B Investor
Interest (after taking into account any adjustments to be made on such
Distribution Date pursuant to Sections 4.10 and 4.12) on such Distribution
Date.
41
(d) The
amount of monthly principal distributable with respect to the Class C
Certificates on each Distribution Date (the “Class C Monthly Principal”)
shall be, beginning with the Distribution Date on which the Class B
Investor Interest has been paid in full, an amount equal to the lesser of (i)
the Available Principal Collections with respect to such Distribution Date
(minus the portion of such Available Principal Collections applied to
Class A Monthly Principal, Class M Monthly Principal and Class B
Monthly Principal on such Distribution Date) and (ii) the Class C Investor
Interest (after taking into account any adjustments to be made on such
Distribution Date pursuant to Sections 4.10 and 4.12) on such Distribution
Date.
(e) The
amount of monthly principal distributable with respect to the Class D-1
Certificates on each Distribution Date (the “Class D-1 Monthly
Principal”) shall be, beginning with the Distribution Date on which the
Class C Investor Interest has been paid in full, an amount equal to the
lesser of (i) the Available Principal Collections with respect to such
Distribution Date (minus the portion of such Available Principal Collections
applied to Class A Monthly Principal, Class M Monthly Principal,
Class B Monthly Principal and Class C Monthly Principal on such
Distribution Date) and (ii) the Class D-1 Investor Interest (after taking
into account any adjustments to be made on such Distribution Date pursuant
to
Sections 4.10 and 4.12) on such Distribution Date.
(f) The
amount of monthly principal distributable with respect to the Class D-2
Certificates on each Distribution Date (the “Class D-2 Monthly
Principal”) shall be, beginning with the Distribution Date on which the
Class D-1 Investor Interest has been paid in full, an amount equal to the
lesser of (i) the Available Principal Collections with respect to such
Distribution Date (minus the portion of such Available Principal Collections
applied to Class A Monthly Principal, Class M Monthly Principal,
Class B Monthly Principal, Class C Monthly Principal and Class D-1 Monthly
Principal on such Distribution Date) and (ii) the Class D-2 Investor
Interest (after taking into account any adjustments to be made on such
Distribution Date pursuant to Sections 4.10 and 4.12) on such Distribution
Date.
SECTION
4.8. Coverage of Class A, Class M and Class B Required
Amounts.
(a) On
or before each Distribution Date, the Servicer shall determine the amount (the
“Class A Required Amount”), if any, by which the sum of (i) the Class A
Monthly Interest for such Distribution Date, plus (ii) the Class A Deficiency
Amount, if any, for such Distribution Date, plus (iii) the Class A Additional
Interest, if any, for such Distribution Date, plus (iv) the Class A Servicing
Fee for the related Due Period, plus (v) the Class A Servicing Fee, if any,
due
but not paid on any prior Distribution Date, plus (vi) the Class A Investor
Loss
Amount, if any, for such Distribution Date, plus (vii) the Class A Investor
Dilution Amount for such Distribution Date, plus (viii) the Class A Net
Swap Payment, if any, for such Distribution Date exceeds the Class A Available
Funds for such Distribution Date.
(b) On
or before each Distribution Date, the Servicer shall also determine the amount
(the “Class M Required Amount”), if any, by which the sum of (i) the
Class M Monthly Interest for such Distribution Date, plus (ii) the Class M
Deficiency Amount, if any, for such Distribution Date, plus (iii) the
Class M Additional Interest, if any, for such Distribution Date, plus
(iv) the Class M Servicing Fee for the related Due Period, plus
(v) the Class M Servicing Fee, if any, due but not paid on any prior
Distribution Date, plus (vi) the Class M Investor Loss
42
Amount,
if any, for such Distribution Date, plus (vii) the Class M Investor Dilution
Amount for such Distribution Date, plus (viii) the Class M Net Swap
Payment, if any, for such Distribution Date exceeds the Class M Available Funds
for such Distribution Date.
(c) On
or before each Distribution Date, the Servicer shall also determine the amount
(the “Class B Required Amount”), if any, by which the sum of (i) the
Class B Monthly Interest for such Distribution Date, plus (ii) the Class
B Deficiency Amount, if any, for such Distribution Date, plus (iii) the
Class B Additional Interest, if any, for such Distribution Date, plus
(iv) the Class B Servicing Fee for the related Due Period, plus
(v) the Class B Servicing Fee, if any, due but not paid on any prior
Distribution Date, plus (vi) the Class B Investor Loss Amount, if
any, for such Distribution Date, plus (vii) the Class B Investor Dilution Amount
for such Distribution Date, plus (viii) the Class B Net Swap Payment, if
any, for such Distribution Date exceeds the Class B Available Funds for such
Distribution Date.
(d) In
the event that the Class A Required Amount, the Class M Required Amount or
the
Class B Required Amount for such Distribution Date is greater than zero, the
Servicer shall give written notice to the Trustee of such positive Class A
Required Amount, Class M Required Amount or Class B Required Amount on or before
such Distribution Date. For any Distribution Date, in the event that
the Class A Required Amount for such Distribution Date is greater than zero,
all
or a portion of the Excess Spread and Shared Excess Finance Charge Collections
with respect to such Distribution Date in an amount equal to the Class A
Required Amount, to the extent available, for such Distribution Date shall
be
distributed on such Distribution Date pursuant to subsection
4.11(a). In the event that the Class A Required Amount for such
Distribution Date exceeds the amount of Excess Spread and Shared Excess Finance
Charge Collections with respect to such Distribution Date, Reallocated Principal
Collections with respect to the related Due Period shall be applied as specified
in Section 4.12. In the event that the Class M Required Amount
for such Distribution Date exceeds the amount of Excess Spread and Shared Excess
Finance Charge Collections available to fund the Class M Required Amount
pursuant to subsection 4.11(c), the Reallocated Class B Principal Collections,
the Reallocated Class C Principal Collections and the Reallocated Class D
Principal Collections (after application, in each case, to the Class A Required
Amount) with respect to the related Due Period shall be applied as specified
in
Section 4.12; provided, however, that the sum of any payments
pursuant to this paragraph shall not exceed the sum of the Class A Required
Amount and the Class M Required Amount. In the event that the Class B
Required Amount for such Distribution Date exceeds the amount of Excess Spread
and Shared Excess Finance Charge Collections available to fund the Class B
Required Amount pursuant to subsection 4.11(e), the Reallocated Class C
Principal Collections and Reallocated Class D Principal Collections (after
application, in each case, to the Class A Required Amount and the Class M
Required Amount) with respect to the related Due Period shall be applied as
specified in Section 4.12; provided, however, that the sum of any
payments pursuant to this paragraph shall not exceed the sum of the Class A
Required Amount, the Class M Required Amount and the Class B Required
Amount.
SECTION
4.9. Monthly Payments. On or before each
Distribution Date, the Servicer shall instruct the Trustee in writing (which
writing shall be substantially in the form of Exhibit E hereto) to withdraw
and
the Trustee, acting in accordance with such instructions, shall withdraw on
such
Distribution Date, to the extent of available funds, the amounts required to
be
withdrawn from the Collection Account as follows:
43
(a) an
amount equal to the Class A Available Funds for the related Due Period shall
be
distributed on each Distribution Date in the following priority:
(i) on
a pari passu and pro rata basis based on amounts owing under this
clause (i) to each of the Class A-1 Certificateholders, the Class A-2
Certificateholders and the Hedge Counterparty under the Class A Swap (A) an
amount equal to Class A Monthly Interest for such Distribution Date, plus
the amount of any Class A Deficiency Amount for such Distribution Date,
plus the amount of any Class A Additional Interest for such Distribution
Date, shall be distributed to the Class A Certificateholders and (B) any Class
A
Net Swap Payment shall be paid to the Hedge Counterparty under the Class A
Swap;
(ii) an
amount equal to the Class A Servicing Fee for such Distribution Date plus the
amount of any Class A Servicing Fee due but not paid to the Servicer on any
prior Distribution Date shall be distributed to the Servicer;
(iii) an
amount equal to the Class A Investor Loss Amount, if any, for the related Due
Period shall be treated as a portion of Available Principal Collections for
such
Distribution Date;
(iv) an
amount equal to the Class A Investor Dilution Amount, if any, for the related
Due Period shall be treated as a portion of Available Principal Collections
for
such Distribution Date; and
(v) the
balance, if any, shall constitute Excess Spread and shall be allocated and
distributed as set forth in Section 4.11.
(b) an
amount equal to the Class M Available Funds for the related Due Period shall
be
distributed on each Distribution Date in the following priority:
(i) on
a pari passu and pro rata basis based on amounts owing under this
clause (i) to each of the Class M-1 Certificateholders, the Class M-2
Certificateholders and the Hedge Counterparty under the Class M Swap (A) an
amount equal to the Class M Monthly Interest for such Distribution Date,
plus the amount of any Class M Deficiency Amount for such Distribution
Date, plus the amount of any Class M Additional Interest for such
Distribution Date, shall be distributed to the Class M Certificateholders and
(B) any Class M Net Swap Payment shall be paid to the Hedge Counterparty under
the Class M Swap;
(ii) an
amount equal to the Class M Servicing Fee for such Distribution Date,
plus the amount of any Class M Servicing Fee due but not paid to the
Servicer on any prior Distribution Date shall be distributed to the Servicer;
and
(iii) the
balance, if any, shall constitute Excess Spread and shall be allocated and
distributed as set forth in Section 4.11.
(c) an
amount equal to the Class B Available Funds for the related Due Period shall
be
distributed on each Distribution Date in the following priority:
44
(i) on
a pari passu and pro rata basis based on amounts owing under this
clause (i) to the each of the Class B-1 Certificateholders, the Class B-2
Certificateholders and the Hedge Counterparty under the Class B Swap (A) an
amount equal to the Class B Monthly Interest for such Distribution Date, plus
the amount of any Class B Deficiency Amount for such Distribution Date, plus
the
amount of any Class B Additional Interest for such Distribution Date, shall
be
distributed to the Class B Certificateholders and (B) any Class B Net Swap
Payment shall be paid to the Hedge Counterparty under the Class B
Swap;
(ii) an
amount equal to the Class B Servicing Fee for such Distribution Date,
plus the amount of any Class B Servicing Fee due but not paid to the
Servicer on any prior Distribution Date shall be distributed to the Servicer;
and
(iii) the
balance, if any, shall constitute Excess Spread and shall be allocated and
distributed as set forth in Section 4.11.
(d) An
amount equal to the Class C Available Funds for the related Due Period shall
be
distributed on each Distribution Date in the following priority:
(i) an
amount equal to the Class C Servicing Fee for such Distribution Date plus the
amount of any Class C Servicing Fee due but not paid to the Servicer on any
prior Distribution Date shall be distributed to the Servicer; and
(ii) the
balance, if any, shall constitute Excess Spread and shall be allocated and
distributed as set forth in Section 4.11.
(e) An
amount equal to the Class D Available Funds for the related Due Period shall
be
distributed on each Distribution Date in the following priority:
(i) an
amount equal to the Class D Servicing Fee for such Distribution Date plus the
amount of any Class D Servicing Fee due but not paid to the Servicer on any
prior Distribution Date shall be distributed to the Servicer; and
(ii) the
balance, if any, shall constitute Excess Spread and shall be allocated and
distributed as set forth in Section 4.11.
(f) During
the Revolving Period, an amount equal to the Available Principal Collections
for
the related Due Period shall be distributed on each Distribution Date in the
following priority:
(i) first,
an amount equal to any amounts required to be applied on such date from
Available Principal Collections pursuant to the Class C Purchase Agreement
shall
be so applied, and second, an amount equal to any amounts required to be applied
on such date from Available Principal Collections pursuant to the Class D
Purchase Agreement shall be so applied; and
(ii) an
amount equal to Available Principal Collections remaining after giving effect
to
the applications specified in subsection 4.9(f)(i) above shall be treated as
Shared
45
Principal
Collections and applied to Series in Group One that are Principal Sharing Series
other than this Series 2007-1 and as provided in Section 4.3(f).
(g) During
the Controlled Amortization Period or the Early Amortization Period (beginning
with the Distribution Date in the month following the month in which the
Controlled Amortization Period or the Early Amortization Period begins), an
amount equal to the Available Principal Collections for the related Due Period
shall be distributed on each Distribution Date in the following
priority:
(i) an
amount equal to the Class A Monthly Principal for such Distribution Date shall
be distributed to the Class A Certificateholders;
(ii) after
giving effect to the distribution referred to in clause (i) above, beginning
on
the Class M Principal Commencement Date, an amount equal to the Class M Monthly
Principal shall be distributed to the Class M Certificateholders;
(iii) after
giving effect to the distribution referred to in clauses (i) and (ii) above,
beginning on the Class B Principal Commencement Date, an amount equal to the
Class B Monthly Principal shall be distributed to the Class B
Certificateholders;
(iv) after
giving effect to the distribution referred to in clauses (i), (ii) and (iii)
above, beginning with the Distribution Date on which the Class B Investor
Interest has been paid in full, an amount equal to the Class C Monthly Principal
shall be distributed to the Class C Certificateholders in accordance with
the Class C Purchase Agreement;
(v) after
giving effect to the distributions referred to in clauses (i), (ii), (iii)
and
(iv) above, beginning with the Distribution Date on which the Class C Investor
Interest has been paid in full, an amount equal to the Class D Monthly Principal
shall be distributed to the Class D Certificateholders in accordance with
the Class D Purchase Agreements;
(vi) after
giving effect to the distributions referred to in clauses (i), (ii), (iii),
(iv)
and (v) above, first an amount equal to any amounts required to be applied
from
Available Principal Collections on such date pursuant to the Class C Purchase
Agreement shall be so applied, and second, an amount equal to any amounts
required to be applied from Available Principal Collections on such date
pursuant to the Class D Purchase Agreement shall be so applied ;
and
(vii) an
amount equal to Available Principal Collections remaining after the applications
specified in clauses (i), (ii), (iii), (iv), (v) and (vi) above shall be treated
as Shared Principal Collections and applied to Series in Group One which are
Principal Sharing Series other than this Series 2007-1 and as provided in
Section 4.3(f).
For
each
of the Class A, Class M and Class B Certificates, such principal payments shall
be applied to each of the subclasses of such Class on a pro rata basis according
to the initial principal amount of such subclass. For the Class D
Certificates, such principal payments shall be applied as provided in the Class
D Purchase Agreements.
46
(h) On
each of the Lane ▇▇▇▇▇▇ Portfolio Distribution Date and the Funding Period
Termination Distribution Date, an amount equal to the amount withdrawn from
the
Pre-Funding Account and deposited in the Collection Account for application
to
the principal amount of the Certificates, as specified in subsection 4.19(b),
shall be distributed to the Class A Certificateholders, the Class M
Certificateholders, the Class B Certificateholders, the Class C
Certificateholders and Class D Certificateholders in reduction of the
outstanding principal amount of the Class A Certificates, the Class M
Certificates, the Class B Certificates, the Class C Certificates and the Class
D
Certificates, pro rata according to the initial principal amount of each such
Class. For each of the Class A, Class M and Class B Certificates,
such principal payments shall be applied to each of the subclasses of such
Class
on a pro rata basis according to the initial principal amount of such
subclass. For the Class D Certificates, such principal payments shall
be applied as provided in the Class D Purchase Agreements.
SECTION
4.10. Investor Charge-Offs.
(a) On
or before each Distribution Date, the Servicer shall calculate the Class A
Investor Loss Amount. If on any Distribution Date, the Class A
Investor Loss Amount for the prior Due Period exceeds the sum of the amounts
allocated with respect thereto pursuant to subsection 4.9(a)(iii), subsection
4.11(a) and Section 4.12 with respect to such Due Period, the Class D-2 Investor
Interest (after giving effect to reductions for any Class D-2 Investor
Charge-Offs described in paragraph (e) and any Reallocated Class D-2 Principal
Collections on such Distribution Date) will be reduced by the amount of such
excess. If such reduction would cause the Class D-2 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-2 Investor Interest will be reduced to zero, and the Class D-1 Investor
Interest (after giving effect to reductions for any Class D-1 Investor
Charge-Offs described in paragraph (e) and any Reallocated Class D-1 Principal
Collections on such Distribution Date) will be reduced by the amount by which
the Class D-2 Investor Interest would have been reduced below
zero. If such reduction would cause the Class D-1 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-1 Investor Interest will be reduced to zero, and the Class C Investor
Interest (after giving effect to reductions for any Class C Investor Charge-Offs
described in paragraph (d) and any Reallocated Class C Principal Collections
on
such Distribution Date) will be reduced by the amount by which the Class D-1
Investor Interest would have been reduced below zero. If such
reduction would cause the Class C Investor Interest to be a negative number
(but
for the proviso in the definition thereof), the Class C Investor Interest will
be reduced to zero, and the Class B Investor Interest (after giving effect
to
reductions for any Class B Investor Charge-Offs described in paragraph (c)
and
any Reallocated Class B Principal Collections on such Distribution Date) will
be
reduced by the amount by which the Class C Investor Interest would have been
reduced below zero. If such reduction would cause the Class B Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class B Investor Interest will be reduced to zero, and the Class M Investor
Interest (after giving effect to reductions for any Class M Investor Charge-Offs
described in paragraph (b) and any Reallocated Class M Principal Collections
on
such Distribution Date) will be reduced by the amount by which the Class B
Investor Interest would have been reduced below zero. If such
reduction would cause the Class M Investor Interest to be a negative number
(but
for the proviso in the definition thereof), the Class M Investor Interest will
be reduced to zero, and the Class A Investor Interest will be reduced by the
amount by which the Class M Investor Interest would have been reduced below
zero, but not by more than
47
the
Class
A Investor Loss Amount for such Distribution Date. Additionally, the
Class A Investor Interest shall be reduced by the amount of any Series 2007-1
Unfunded Dilution Amount remaining after giving effect to any related Class
M
Investor Charge-Off, Class B Investor Charge-Off, Class C Investor Charge-Off
and Class D Investor Charge-Off. The reductions described in the two
prior sentences are referred to collectively as a “Class A Investor
Charge-Off”. If the Class A Investor Interest has been
reduced by the amount of any Class A Investor Charge-Offs, it will be reimbursed
on any Distribution Date (but not by an amount in excess of the aggregate Class
A Investor Charge-Offs) by the amount of Excess Spread and Shared Excess Finance
Charge Collections allocated and available for such purpose pursuant to
subsection 4.11(b).
(b) On
or before each Distribution Date, the Servicer shall calculate the Class M
Investor Loss Amount. If on any Distribution Date, the Class M
Investor Loss Amount for the prior Due Period exceeds the amounts allocated
with
respect thereto pursuant to subsection 4.11(c) and Section 4.12 with respect
to
such Due Period, the Class D-2 Investor Interest (after giving effect to
reductions for any Class D-2 Investor Charge-Offs described in paragraph (a)
and
paragraph (e) and any Reallocated Class D-2 Principal Collections on such
Distribution Date) will be reduced by the amount of such excess. If
such reduction would cause the Class D-2 Investor Interest to be a negative
number (but for the proviso in the definition thereof), the Class D-2 Investor
Interest will be reduced to zero, and the Class D-1 Investor Interest (after
giving effect to reductions for any Class D-1 Investor Charge-Offs described
in
paragraph (a) and paragraph (e) and any Reallocated Class D-1 Principal
Collections on such Distribution Date) will be reduced by the amount by which
the Class D-2 Investor Interest would have been reduced below
zero. If such reduction would cause the Class D-1 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-1 Investor Interest will be reduced to zero, and the Class C Investor
Interest (after giving effect to reductions for any Class C Investor Charge-Offs
described in paragraph (a) and paragraph (d) and any Reallocated Class C
Principal Collections on such Distribution Date) will be reduced by the amount
by which the Class D-1 Investor Interest would have been reduced below
zero. If such reduction would cause the Class C Investor Interest to
be a negative number (but for the proviso in the definition thereof), the Class
C Investor Interest will be reduced to zero, and the Class B Investor Interest
(after giving effect to reductions for any Class B Investor Charge-Offs
described in paragraph (a) and paragraph (c) and any Reallocated Class B
Principal Collections on such Distribution Date) will be reduced by the amount
by which the Class C Investor Interest would have been reduced below
zero. If such reduction would cause the Class B Investor Interest to
be a negative number (but for the proviso in the definition thereof), the Class
B Investor Interest shall be reduced to zero, and the Class M Investor Interest
shall be reduced by the amount by which the Class B Investor Interest would
have
been reduced below zero, but not by more than the Class M Investor Loss Amount
for such Distribution Date. Additionally, the Class M Investor
Interest shall be reduced by the amount of any Series 2007-1 Unfunded Dilution
Amount remaining after giving effect to any related Class B Investor Charge-Off,
Class C Investor Charge-Off and Class D Investor Charge-Off. The
reductions to the Class M Investor Interest under this subsection 4.10(b),
together with all reductions to the Class M Investor Interest under subsection
4.10(a), are collectively referred to as a “Class M Investor
Charge-Off”. The Class M Investor Interest will thereafter be
reimbursed (but not to an amount in excess of the unpaid principal amount of
the
Class M Certificates) on any Distribution Date by the amount of Excess Spread
and Shared
48
Excess
Finance Charge Collections allocated and available for that purpose as described
under subsection 4.11(d).
(c) On
or before each Distribution Date, the Servicer shall calculate the Class B
Investor Loss Amount. If on any Distribution Date, the Class B
Investor Loss Amount for the prior Due Period exceeds the amounts allocated
with
respect thereto pursuant to subsection 4.11(e) and Section 4.12 with respect
to
such Due Period, the Class D-2 Investor Interest (after giving effect to
reductions for any Class D-2 Investor Charge-Offs described in paragraph (a),
paragraph (b) and paragraph (e) and any Reallocated Class D-2 Principal
Collections on such Distribution Date) will be reduced by the amount of such
excess. If such reduction would cause the Class D-2 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-2 Investor Interest will be reduced to zero, and the Class D-1 Investor
Interest (after giving effect to reductions for any Class D-1 Investor
Charge-Offs described in paragraph (a), paragraph (b) and paragraph (e) and
any
Reallocated Class D-1 Principal Collections on such Distribution Date) will
be
reduced by the amount by which the Class D-2 Investor Interest would have been
reduced below zero. If such reduction would cause the Class D-1
Investor Interest to be a negative number (but for the proviso in the definition
thereof), the Class D-1 Investor Interest will be reduced to zero, and the
Class
C Investor Interest (after giving effect to reductions for any Class C Investor
Charge-Offs described in paragraph (a), paragraph (b) and paragraph (d) and
any
Reallocated Class C Principal Collections on such Distribution Date) will be
reduced by the amount by which the Class D-1 Investor Interest would have been
reduced below zero. If such reduction would cause the Class C
Investor Interest to be a negative number (but for the proviso in the definition
thereof), the Class C Investor Interest shall be reduced to zero and the Class
B
Investor Interest shall be reduced by the amount by which the Class C Investor
Interest would have been reduced below zero, but not by more than the Class
B
Investor Loss Amount for such Distribution Date. Additionally, the
Class B Investor Interest shall be reduced by the amount of any Series 2007-1
Unfunded Dilution Amount remaining after giving effect to any related Class
C
Investor Charge-Off and Class D Investor Charge-Off. The reductions
to the Class B Investor Interest under this subsection 4.10(c), together with
all reductions to the Class B Investor Interest under subsections 4.10(a) and
4.10(b), are collectively referred to as a “Class B Investor
Charge-Off”. The Class B Investor Interest will thereafter be
reimbursed (but not to an amount in excess of the unpaid principal amount of
the
Class B Certificates) on any Distribution Date by the amount of Excess Spread
and Shared Excess Finance Charge Collections allocated and available for that
purpose as described under subsection 4.11(f).
(d) On
or before each Distribution Date, the Servicer shall calculate the Class C
Investor Loss Amount. If on any Distribution Date, the Class C
Investor Loss Amount for the prior Due Period exceeds the amount of Excess
Spread, Shared Excess Finance Charge Collections and Reallocated Class D
Principal Collections which are allocated and available to fund such amount
pursuant to subsection 4.11(i) and Section 4.12, the Class D-2 Investor
Interest (after giving effect to reductions for any Class D-2 Investor
Charge-Offs described in paragraphs (a), (b) and (c) and paragraph (e) and
any
Reallocated Class D-2 Principal Collections on such Distribution Date) will
be reduced by the amount of such excess. If such reduction would
cause the Class D-2 Investor Interest to be a negative number (but for the
proviso in the definition thereof), the Class D-2 Investor Interest will be
reduced to zero, and the Class D-1 Investor Interest (after giving effect to
reductions for any Class D-1 Investor Charge-Offs described in
49
paragraphs
(a), (b) and (c) and paragraph (e) and any Reallocated Class D-1 Principal
Collections on such Distribution Date) will be reduced by the amount by which
the Class D-2 Investor Interest would have been reduced below
zero. If such reduction would cause the Class D-1 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-1 Investor Interest will be reduced to zero, and the Class C Investor
Interest will be reduced by the amount by which the Class D-1 Investor Interest
would have been reduced below zero, but not by more than the Class C Investor
Loss Amount for such Distribution Date. Additionally, the Class C
Investor Interest shall be reduced by the amount of any Series 2007-1 Unfunded
Dilution Amount remaining after giving effect to any related Class D Investor
Charge-Off . The reductions to the Class C Investor Interest under
this subsection 4.10(d), together with all reductions to the Class C Investor
Interest under subsections 4.10(a), (b) and (c), are referred to collectively
as
a “Class C Investor Charge-Off”. The Class C Investor Interest
will thereafter be reimbursed (but not in excess of the unreimbursed amount
of
such reductions) on any Distribution Date by the amount of the Excess Spread
and
Shared Excess Finance Charge Collections allocated and available under
subsection 4.11(k).
(e) On
or before each Distribution Date, the Servicer shall calculate the Class D
Investor Loss Amount. If on any Distribution Date, the Class D
Investor Loss Amount for the prior Due Period exceeds the amount of Excess
Spread and Shared Excess Finance Charge Collections which is allocated and
available to fund such amount pursuant to subsection 4.11(o), the Class D-2
Investor Interest will be reduced by the amount of such excess. If
such reduction would cause the Class D-2 Investor Interest to be a negative
number (but for the proviso in the definition thereof), the Class D-2 Investor
Interest will be reduced to zero, and the Class D-1 Investor Interest will
be
reduced by the amount by which the Class D-2 Investor Interest would have been
reduced below zero but not by more than the lesser of any remaining Class D
Investor Loss Amount for such Distribution Date and the Class D-1 Investor
Interest. Additionally, the Class D-2 Investor Interest shall be
reduced by the amount of any Series 2007-1 Unfunded Dilution
Amount. If such reduction would cause the Class D-2 Investor Interest
to be a negative number (but for the proviso in the definition thereof), the
Class D-2 Investor Interest will be reduced to zero, and the Class D-1 Investor
Interest will be reduced by the amount by which the Class D-2 Investor Interest
would have been reduced below zero but not by more than the lesser of any
remaining Series 2007-1 Unfunded Dilution Amount for such Distribution Date
and
the Class D-1 Investor Interest. The reductions to the Class D-2
Investor Interest under this clause (e), together with all reductions to the
Class D-2 Investor Interest under subsections 4.10(a), (b), (c) and (d), are
referred to collectively as a “Class D-2 Investor
Charge-Off”. The reductions to the Class D-1 Investor Interest
under this subsection 4.10(e), together with all reductions to the Class D-1
Investor Interest under subsections 4.10(a), (b), (c) and (d), are referred
to
collectively as a “Class D-1 Investor Charge-Off”. Each of the
Class D-1 Investor Interest and the Class D-2 Investor Interest will thereafter
be reimbursed (but not in excess of the unreimbursed amount of such reductions)
on any Distribution Date by the amount of the Excess Spread and Shared Excess
Finance Charge Collections allocated and available for that purpose as described
under subsection 4.11(q).
SECTION
4.11. Excess Spread; Shared Excess Finance Charge
Collections. On or before each Distribution Date, the Servicer
shall instruct the Trustee in writing (which writing shall be substantially
in
the form of Exhibit E hereto) to apply Excess Spread and Shared
Excess
50
Finance
Charge Collections allocated to Series 2007-1 with respect to the related Due
Period to make the following distributions on each Distribution Date in the
following priority:
(a) an
amount equal to the Class A Required Amount, if any, with respect to such
Distribution Date shall be used to fund the Class A Required Amount and be
applied in accordance with, and in the priority set forth in, subsection
4.9(a);
(b) an
amount equal to the aggregate amount of Class A Investor Charge-Offs which
have
not been previously reimbursed shall be treated as a portion of Available
Principal Collections for such Distribution Date;
(c) (I)
an amount equal to the Class M Required Amount, if any, with respect to such
Distribution Date shall be used to fund any deficiency pursuant to subsections
4.9(b)(i) and (ii) in the order of priority specified therein and (II) any
remaining amount up to the sum of the Class M Investor Loss Amount and Class
M
Investor Dilution Amount for the related Due Period shall be treated as a
portion of Available Principal Collections for such Distribution
Date;
(d) an
amount equal to the aggregate amount by which the Class M Investor Interest
has
been reduced as described in clauses (c) and (d) of the definition of Class
M
Investor Interest (but not in excess of the unreimbursed amount of such
reductions) shall be treated as a portion of Available Principal Collections
for
such Distribution Date;
(e) (I)
an amount equal to the Class B Required Amount, if any, with respect to such
Distribution Date shall be used to fund any deficiency pursuant to subsections
4.9(c)(i) and (ii) in the order of priority specified therein and (II) any
remaining amount up to the sum of the Class B Investor Loss Amount and Class
B
Investor Dilution Amount for the related Due Period shall be treated as a
portion of Available Principal Collections for such Distribution
Date;
(f) an
amount equal to the aggregate amount by which the Class B Investor Interest
has
been reduced as described in clauses (c) and (d) of the definition of Class
B
Investor Interest (but not in excess of the unreimbursed amount of such
reductions) shall be treated as a portion of Available Principal Collections
for
such Distribution Date;
(g) an
amount equal to the excess, if any, of the Class C Servicing Fee for such
Distribution Date plus the amount of any Class C Servicing Fee due but not
paid
to the Servicer on any prior Distribution Date over the Class C Available Funds
for such Distribution Date shall be paid to the Servicer;
(h) on
a pro rata basis based on amounts owing in this clause (h) to the Class C
Certificateholders, an amount equal to the sum of the Class C Monthly Interest
plus the Class C Deficiency Amount for such Distribution Date shall be
distributed to the Class C Certificateholders in accordance with the
Class C Purchase Agreement;
(i) an
amount equal to the Class C Investor Loss Amount, if any, for the related Due
Period shall be treated as a portion of Available Principal Collections for
such
Distribution Date;
51
(j) an
amount equal to the Class C Investor Dilution Amount, if any, for the related
Due Period shall be treated as a portion of Available Principal Collections
for
such Distribution Date;
(k) an
amount equal to the aggregate amount by which the Class C Investor Interest
has
been reduced as described in clauses (c) and (d) of the definition of Class
C
Investor Interest (but not in excess of the unreimbursed amount of such
reductions) shall be treated as a portion of Available Principal Collections
for
such Distribution Date;
(l) an
amount equal to the aggregate of any other amounts then due to the Class C
Certificateholders or required to be applied pursuant to the Class C Purchase
Agreement out of Excess Spread and Shared Excess Finance Charge Collections
allocated to Series 2007-1 shall be distributed for application in accordance
with the Class C Purchase Agreement;
(m) an
amount equal to the excess, if any, of the Class D Servicing Fee for such
Distribution Date plus the amount of any Class D Servicing Fee due but not
paid
to the Servicer on any prior Distribution Date over the Class D Available Funds
for such Distribution Date shall be paid to the Servicer;
(n) an
amount equal to the Class D Monthly Interest plus the amount of any Class D
Deficiency Amount for such Distribution Date shall be distributed to the Class
D
Certificateholders in accordance with the Class D Purchase
Agreements;
(o) an
amount equal to the Class D Investor Loss Amount, if any, for the related Due
Period shall be treated as a portion of Available Principal Collections for
such
Distribution Date;
(p) an
amount equal to the Class D Investor Dilution Amount, if any, for the related
Due Period shall be treated as a portion of Available Principal Collections
for
such Distribution Date;
(q) first
an amount equal to the aggregate amount by which the Class D-1 Investor Interest
has been reduced as described in clauses (c) and (d) of the definition of Class
D-1 Investor Interest (but not in excess of the unreimbursed amount of such
reductions) shall be treated as a portion of Available Principal Collections
for
such Distribution Date and then an amount equal to the aggregate amount by
which
the Class D-2 Investor Interest has been reduced as described in clauses (c)
and
(d) of the definition of Class D-2 Investor Interest (but not in excess of
the
unreimbursed amount of such reductions) shall be treated as a portion of
Available Principal Collections for such Distribution Date;
(r) an
amount equal to the excess, if any, of (A) the Minimum Required Funding Period
Reserve Amount over (B) the amount on deposit in the Funding Period Reserve
Account (after taking into account any withdrawals to be made from the Funding
Period Reserve Account on such Distribution Date pursuant to subsection
4.20(c)(i)), shall be deposited into the Funding Period Reserve
Account;
(s) an
amount equal to the aggregate of any other amounts then due to the Class D
Certificateholders or required to be applied pursuant to the Class D
Purchase
52
Agreements
out of Excess Spread and Shared Excess Finance Charge Collections allocated
to
Series 2007-1 shall be distributed for application in accordance with the Class
D Purchase Agreements;
(t) on
a pro rata basis based on amounts owing under this clause (t), to the extent
not
already paid under Section 4.22(c) hereof: (A) an amount equal to any
Hedge Termination Fees or other additional payments owed to the Hedge
Counterparty under the Class A Swap shall be paid to the Hedge Counterparty
under the Class A Swap, (B) an amount equal to any Hedge Termination Fees or
other additional payments owed to the Hedge Counterparty under the Class M
Swap
shall be paid to the Hedge Counterparty under the Class M Swap, (C) an amount
equal to any Hedge Termination Fees or other additional payments owed to the
Hedge Counterparty under the Class B Swap shall be paid to the Hedge
Counterparty under the Class B Swap, (D) an amount equal to any additional
payments owed to the Hedge Counterparty under the Class C Cap shall be paid
to
the Hedge Counterparty under the Class C Cap, and (E) an amount equal to the
excess, if any, of (a) the Minimum Required Hedge Reserve Amount over (b) the
amount on deposit in the Hedge Reserve Account shall be deposited into the
Hedge
Reserve Account; and
(u) the
balance, if any, will constitute a portion of Shared Excess Finance Charge
Collections for such Distribution Date and will be available for allocation
to
other Series in Group One and, to the extent not required to be applied as
Shared Excess Finance Charge Collections with respect to any Series in Group
One, shall be distributed to the Holder of the Exchangeable Seller Certificate
or any other Person then entitled to such amounts.
SECTION
4.12. Reallocated Principal Collections.
(a) On
or before each Distribution Date, the Servicer shall instruct the Trustee in
writing (which writing shall be substantially in the form of Exhibit E hereto)
to apply Reallocated Principal Collections (applying all Reallocated Principal
Collections in accordance with subsection 4.12(b)) with respect to such
Distribution Date, to make the following distributions on each Distribution
Date
in the following priority:
(i) an
amount equal to the excess, if any, of (x) the Class A Required Amount, if
any,
with respect to such Distribution Date over (y) the amount of Excess Spread
and
Shared Excess Finance Charge Collections allocated to Series 2007-1 with respect
to the related Due Period, shall be applied in accordance with, and in the
priority set forth in, subsections 4.9(a)(i), (ii), (iii) and
(iv);
(ii) an
amount equal to the excess, if any, of (x) the Class M Required Amount, if
any,
with respect to such Distribution Date over (y) the amount of Excess Spread
and
Shared Excess Finance Charge Collections allocated and available to the Class
M
Certificates pursuant to subsection 4.11(c) on such Distribution Date shall
be
applied first in accordance with, and in the priority set forth in subsections
4.9(b)(i) and (ii) and then pursuant to and in the priority set forth in
subsection 4.11(c)(II);
(iii) an
amount equal to the excess, if any, of (x) the Class B Required Amount, if
any,
with respect to such Distribution Date over (y) the amount of
Excess
53
Spread
and Shared Excess Finance Charge Collections allocated and available to the
Class B Certificates pursuant to subsection 4.11(e) on such Distribution Date
shall be applied first in accordance with, and in the priority set forth in
subsections 4.9(c)(i) and (ii) and then pursuant to and in the priority set
forth in subsection 4.11(e)(II); and
(iv) an
amount equal to the excess, if any, of (x) the Class C Required Amount, if
any,
with respect to such Distribution Date over (y) the amount of Excess Spread
and
Shared Excess Finance Charge Collections allocated and available to the Class
C
Investor Interest pursuant to subsections 4.11(g), 4.11(h), 4.11(i) and 4.11(j)
on such Distribution Date shall be applied first pursuant to subsection
4.9(d)(i), and then pursuant to and in the priority set forth in subsections
4.11(h), 4.11(i) and 4.11(j).
(b) On
each Distribution Date on which the Servicer shall instruct the Trustee to
apply
Reallocated Principal Collections pursuant to paragraph (a) above, the Trustee
shall apply such Reallocated Principal Collections in the following order of
priority and only to the extent provided below:
(i) applying
Reallocated Class D-2 Principal Collections in accordance with subsections
4.12
(a)(i) through (a)(iv);
(ii) if
any amounts remain outstanding under subsections 4.12 (a)(i) through (a)(iv)
after giving effect to Reallocated Class D-2 Principal Collections, then
applying Reallocated Class D-1 Principal Collections in accordance with
subsections 4.12 (a)(i) through (a)(iv);
(iii) if
any amounts remain outstanding under subsections 4.12(a)(i), (a)(ii) or (a)(iii)
above after giving effect to Reallocated Class D Principal Collections, then
applying Reallocated Class C Principal Collections in accordance with
subsections 4.12(a)(i), (a)(ii) and (a)(iii);
(iv) if
any amounts remain outstanding under subsection 4.12 (a)(i) or (a)(ii) above
after giving effect to Reallocated Class D Principal Collections and Reallocated
Class C Principal Collections, then applying Reallocated Class B Principal
Collections in accordance with subsection 4.12(a)(i) or (a)(ii);
and
(v) if
any amounts remain outstanding under subsection 4.12 (a)(i) above after giving
effect to Reallocated Class D Principal Collections, Reallocated Class C
Principal Collections and Reallocated Class B Principal Collections, then
applying Reallocated Class M Principal Collections in accordance with subsection
4.12(a)(i).
(c) On
each Distribution Date, the Class D-2 Investor Interest shall be reduced by
the
amount of Reallocated Class D-2 Principal Collections applied in accordance
with
subsection 4.12(b) for such Distribution Date, the Class D-1 Investor Interest
shall be reduced by the amount of Reallocated Class D-1 Principal Collections
applied in accordance with subsection 4.12(b) for such Distribution Date, the
Class C Investor Interest shall be reduced by the amount of Reallocated Class
C
Principal Collections applied in accordance with subsection 4.12(b) for such
Distribution Date, the Class B Investor Interest shall be reduced by the amount
of Reallocated Class B Principal
54
Collections
applied in accordance with subsection 4.12(b) for such Distribution Date and
the
Class M Investor Interest shall be reduced by the amount of Reallocated Class
M
Principal Collections applied in accordance with subsection 4.12(b) for such
Distribution Date. Each of the Class M Investor Interest, the Class B
Investor Interest, the Class C Investor Interest, the Class D-1 Investor
Interest and the Class D-2 Investor Interest will thereafter be reimbursed
(but
not in excess of the unreimbursed amount of such reductions) on any Distribution
Date by the amount of the Excess Spread and Shared Excess Finance Charge
Collections allocated and available to (A) the Class M Investor Interest
pursuant to subsection 4.11(d), (B) the Class B Investor Interest pursuant
to
subsection 4.11(f), (C) the Class C Investor Interest pursuant to subsection
4.11(k) and (D) to the Class D-1 Investor Interest and Class D-2 Investor
Interest pursuant to subsection 4.11(q).
SECTION
4.13. Seller’s or Servicer’s Failure to Make a Deposit or
Payment. If the Servicer or the Seller fails to make, or give
instructions to make, any payment or deposit required to be made or given by
the
Servicer or Seller, respectively, at the time specified in the Agreement
(including applicable grace periods), the Trustee shall make such payment or
deposit from the applicable account without instruction from the Servicer or
Seller. The Trustee shall be required to make any such payment,
deposit or withdrawal hereunder only to the extent that the Trustee has
sufficient information to allow it to determine the amount thereof; provided,
however, that the Trustee shall in all cases be deemed to have sufficient
information to determine the amount of interest payable to the Series 2007-1
Certificateholders on each Distribution Date. The Servicer shall,
upon request of the Trustee, promptly provide the Trustee with all information
necessary to allow the Trustee to make such payment, deposit or
withdrawal. Such funds or the proceeds of such withdrawal shall be
applied by the Trustee in the manner in which such payment or deposit should
have been made by the Seller or the Servicer, as the case may be.
SECTION
4.14. Shared Excess Finance Charge Collections.
(a) The
balance of any Available Funds on deposit in the Collection Account after giving
effect to subsections 4.11(a) through (t) will constitute a portion of Shared
Excess Finance Charge Collections and will be available for allocation to other
Series in Group One or to the Holder of the Exchangeable Seller Certificate
as
described in Section 4.3(g).
(b) Series
2007-1 shall be included in Group One. Subject to subsection 4.3(g)
of the Agreement, Shared Excess Finance Charge Collections with respect to
the
Series in Group One for any Distribution Date will be allocated to Series 2007-1
in an amount equal to the product of (x) the aggregate amount of Shared Excess
Finance Charge Collections with respect to all Series in Group One for such
Distribution Date and (y) a fraction, the numerator of which is the Finance
Charge Shortfall for Series 2007-1 for such Distribution Date and the
denominator of which is the aggregate amount of Finance Charge Shortfalls for
all Series in Group One for such Distribution Date. The “Finance
Charge Shortfall” for Series 2007-1 for any Distribution Date will be equal
to the excess, if any, of (a) the full amount required to be paid, without
duplication, pursuant to subsections 4.11(a) through (t) on such Distribution
Date over (b) the Excess Spread for such Distribution Date.
55
SECTION
4.15. Shared Principal Collections. Subject to
subsection 4.3(f) of the Agreement, Shared Principal Collections for any
Distribution Date will be allocated to Series 2007-1 in an amount equal to
the
product of (x) the aggregate amount of Shared Principal Collections with respect
to all Series in Group One that are Principal Sharing Series for such
Distribution Date and (y) a fraction, the numerator of which is the Principal
Shortfall for Series 2007-1 for such Distribution Date and the denominator
of
which is the Cumulative Principal Shortfall for such Distribution
Date.
SECTION
4.16. Purchase and Cancellation of
Certificates. The Seller may on any Distribution Date on or after
the Funding Period Termination Distribution Date, upon five Business Days’ prior
written notice to the Trustee, purchase Series 2007-1 Certificates on the
secondary market and request the Trustee to cancel such Series 2007-1
Certificates purchased by the Seller on such Distribution Date. In
such case, the Class A, Class M, Class B, Class C and/or Class D Investor
Interest, as applicable, will be reduced by the portion thereof represented
by
such cancelled Certificates; provided that after giving effect to any
cancellation (A) the Class M Investor Interest shall not be less than 6.0%
of
the Series 2007-1 Investor Interest (calculated after giving effect to such
cancellation), (B) the Class B Investor Interest shall not be less than 9.5%
of
the Series 2007-1 Investor Interest (calculated after giving effect to such
cancellation), (C) the Class C Investor Interest shall not be less than 9.0%
of
the Series 2007-1 Investor Interest (calculated after giving affect to such
cancellation), and (D) the Class D Investor Interest shall not be less than
9.5%
of the Series 2007-1 Investor Interest (calculated after giving effect to such
cancellations). No Certificateholder shall be required to sell its
Certificates to the Seller pursuant to this Section 4.16.
SECTION
4.17. Determination of LIBOR.
(a) On
each LIBOR Determination Date, the Trustee shall determine LIBOR on the basis
of
the rate for deposits in United States dollars for a period of the Designated
Maturity which appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London
time, on that date. If such rate does not appear on Reuters Screen
LIBOR01 Page, the rate for that LIBOR Determination Date will be determined
based on the rates at which deposits in United States dollars are offered by
the
Reference Banks at approximately 11:00 a.m., London time, on that day to prime
banks in the London interbank market for a period of the Designated
Maturity. The Trustee or the Hedge Counterparty will request the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two quotations are provided, the rate for that
LIBOR Determination Date will be the arithmetic mean of the
quotations. If fewer than two quotations are provided, the rate for
that LIBOR Determination Date will be the arithmetic mean of the rates quoted
by
four major banks in New York City, selected by the Servicer, at approximately
11:00 a.m., New York City time, on that day for loans in United States dollars
to leading European banks for a period of the Designated Maturity.
(b) The
Class A Certificate Rates, Class M Certificate Rates, Class B Certificate Rates,
Class C Certificate Rate, Class D-1 Certificate Rate and Class D-2 Certificate
Rate applicable to the then current and the immediately preceding Interest
Periods may be obtained by any Series 2007-1 Certificateholder by telephoning
the Trustee at its Corporate Trust Office at (▇▇▇) ▇▇▇-▇▇▇▇.
56
(c) On
each LIBOR Determination Date prior to 12:00 noon New York City time, the
Trustee shall send to the Servicer by facsimile, notification of LIBOR for
the
following Interest Period.
SECTION 4.18. Paired
Series. Any other Series in Group One may be designated (but only
with the consent of the Class C Certificateholders and the Class D
Certificateholders specified in the Class C Purchase Agreement or the Class
D
Certificate Purchase Agreements, as applicable, and subject to satisfaction
of
the Rating Agency Condition) as a Paired Series for Series
2007-1. Such Paired Series either shall be prefunded with an initial
deposit to a prefunding account in an amount up to the initial principal amount
of such Paired Series and primarily from the sale of such Paired Series or
shall
have a variable principal amount. Any such prefunding account shall
be held for the benefit of such Paired Series and not for the benefit of the
Series 2007-1 Certificateholders. As funds in the Collection
Account are allocated for distribution as Available Principal Collections during
the Early Amortization Period or Controlled Amortization Period, either
(i) in the case of a prefunded Paired Series, an equal amount of funds in
any prefunding account for such Paired Series shall be released and distributed
pursuant to the terms of such Paired Series or (ii) in the case of a Paired
Series having a variable principal amount, an interest in such variable Paired
Series in an equal or lesser amount may be sold by the Trust and the proceeds
thereof will be distributed pursuant to the terms of such Paired Series, and,
in
either case, the Investor Interest of such Paired Series will increase by up
to
a corresponding amount. Upon payment in full of the Series Investor
Interest, assuming that there have been no unreimbursed Loss Amounts with
respect to any related Paired Series, the aggregate amount of such Paired Series
shall have been increased by an amount up to an aggregate amount equal to the
Series Investor Interest paid to the Series 2007-1 Certificateholders (or
such other amount as the holders of such Paired Series shall
agree).
SECTION
4.19 Pre-Funding Account. (a) The Seller
hereby directs the Servicer, for the benefit of the Series 2007-1
Certificateholders, to establish and maintain or cause to be established and
maintained in the name of the Trustee and for the Trustee, on behalf of the
Series 2007-1 Certificateholders, with a Qualified Depository Institution (which
initially shall be the Trustee) a segregated trust account (the “Pre-Funding
Account”), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2007-1
Certificateholders. The Seller does hereby transfer, assign, set over
and otherwise convey to the Trust for the benefit of the Series 2007-1
Certificateholders, without recourse, all of its right, title and interest
(if
any) in, to and under the Pre-Funding Account, any cash and/or investments
on
deposit therein and any proceeds of the foregoing, including the investment
earnings. The Pre-Funding Account shall be owned by, and under the
sole dominion and control of, the Trustee for the benefit of the Series 2007-1
Certificateholders. If, at any time, the institution holding the
Pre-Funding Account ceases to be a Qualified Depository Institution, the Seller
shall direct the Servicer to establish within 10 Business Days a new Pre-Funding
Account meeting the conditions specified above with a Qualified Depository
Institution, transfer any cash and/or any investments to such new Pre-Funding
Account and from the date such new Pre-Funding Account is established, it shall
be the “Pre-Funding Account.” In addition, after five days notice to
the Trustee, the Seller may direct the Servicer to establish a new Pre-Funding
Account meeting the conditions specified above with a different Qualified
Depository Institution, transfer any cash and/or investments to such new
Pre-Funding Account and from the date such new Pre-Funding Account is
established, it shall be, for the Series 2007-1 Certificates, the “Pre-Funding
Account.”
57
The
Trustee, at the direction of the Servicer, shall make withdrawals and payments
from the Pre-Funding Account for the purposes of carrying out the Servicer’s or
Trustee’s duties hereunder.
(b) A
portion of the cash proceeds of the sale of the Series 2007-1 Certificates
in an
amount equal to $285,000,000 shall be deposited into the Pre-Funding Account
on
the Closing Date. This amount shall be the Initial Total Pre-Funded
Amount. On each Distribution Date, the Trustee, at the direction of
the Servicer, shall withdraw from the Pre-Funding Account and deposit in the
Collection Account all interest and other investment income on the Cash
Pre-Funded Amount. Interest (including reinvested interest) and other
investment income on funds on deposit in the Pre-Funding Account shall not
be
considered part of the Cash Pre-Funded Amount for purposes of this
Supplement. Funds on deposit in the Pre-Funding Account shall be
withdrawn by the Trustee, at the direction of the Servicer, and paid to the
Seller to the extent of any increases in the Series Investor Interest pursuant
to Section 4.21. If (x) the Lane ▇▇▇▇▇▇ Portfolio shall not have been
acquired by the Originator on or before January 31, 2008, or the Servicer shall
have notified the Trustee in writing on or prior to January 31, 2008 that the
Originator will not acquire the Lane ▇▇▇▇▇▇ Portfolio prior to January 31,
2008,
and (y) any Cash Pre-Funded Amount remains on deposit in the Pre-Funding
Account, on the Lane ▇▇▇▇▇▇ Portfolio Distribution Date the lesser of (i) such
remaining Cash Pre-Funded Amount net of interest and earnings on investments
of
funds on deposit in the Pre-Funding Account on such date) and (ii) $220,000,000
will be deposited into the Collection Account and applied by the Trustee, at
the
direction of the Servicer, in accordance with subsection 4.9(h) to reduce the
outstanding principal amount of the Class A Certificates, the Class M
Certificates, the Class B Certificates, the Class C Certificates and the Class
D
Certificates as specified in subsection 4.9(h). If the Funding Period
Termination Distribution Date occurs and any Cash Pre-Funded Amount remains
on
deposit in the Pre-Funding Account, on such date such remaining Cash Pre-Funded
Amount will be deposited into the Collection Account and will be applied by
the
Trustee, at the direction of the Servicer, in accordance with subsection 4.9(h)
to reduce the outstanding principal amount of the Class A Certificates, the
Class M Certificates, the Class B Certificates, the Class C Certificates and
the
Class D Certificates as specified in subsection 4.9(h).
(c) Funds
on deposit in the Pre-Funding Account shall be invested in Permitted Investments
by the Trustee, at the direction of the Servicer. Funds on deposit in
the Pre-Funding Account on any Distribution Date, after giving effect to any
withdrawals from the Pre-Funding Account, shall be invested in Permitted
Investments that will mature so that such funds will be available for withdrawal
on the following Distribution Date. All interest and earnings (net of
losses and investment expenses) on funds on deposit in the Pre-Funding Account
shall be deposited by the Trustee, at the direction of the Servicer, in the
Collection Account on each Distribution Date and treated as Collections of
Finance Charge Receivables allocated to the Series 2007-1 Certificates for
the
prior Due Period.
(d) The
parties hereto intend that the Pre-Funding Account shall be an account of the
Trustee, and not an account of the Seller. If, notwithstanding the
intent of the parties hereto, it shall be determined that the Seller has any
rights in the Pre-Funding Account, the Seller hereby grants to the Trustee,
to
secure all of its obligations hereunder, a security interest in all of its
right, title, and interest, whether now owned or hereafter acquired, in, to,
and
under the Pre-
58
Funding
Account, all money, instruments, investment property, and other property
credited to or on deposit in the Pre-Funding Account, and all proceeds
thereof.
SECTION
4.20. Funding
Period Reserve Account. (a) The Seller hereby directs the
Servicer, for the benefit of the Series 2007-1 Certificateholders, to establish
and maintain or cause to be established and maintained in the name of the
Trustee and for the Trustee, on behalf of the Series 2007-1 Certificateholders,
with a Qualified Depository Institution (which initially shall be the Trustee)
a
segregated trust account (the “Funding Period Reserve Account”), bearing
a designation clearly indicating that the funds deposited therein are held
for
the benefit of the Series 2007-1 Certificateholders. The Seller does
hereby transfer, assign, set over and otherwise convey to the Trust for the
benefit of the Series 2007-1 Certificateholders, without recourse, all of its
right, title and interest (if any) in, to and under the Funding Period Reserve
Account, any cash and/or investments on deposit therein and any proceeds of
the
foregoing, including the investment earnings. The Funding Period
Reserve Account shall be owned by, and under the sole dominion and control
of,
the Trustee for the benefit of the Series 2007-1
Certificateholders. If, at any time, the institution holding the
Funding Period Reserve Account ceases to be a Qualified Depository Institution,
the Seller shall direct the Servicer to establish within 10 Business Days a
new
Funding Period Reserve Account meeting the conditions specified above with
a
Qualified Depository Institution, transfer any cash and/or any investment to
such new Funding Period Reserve Account and from the date such new Funding
Period Reserve Account is established, it shall be the “Funding Period Reserve
Account.” In addition, after five days notice to the Trustee, the
Seller may direct the Servicer to establish a new Funding Period Reserve Account
meeting the conditions specified above with a different Qualified Depository
Institution, transfer any cash and/or investments to such new Funding Period
Reserve Account and from the date such new Funding Period Reserve Account is
established, it shall be, for the Series 2007-1 Certificates, the “Funding
Period Reserve Account.” Pursuant to the authority granted to the
Servicer in subsection 3.1(b) of the Agreement, the Servicer shall have the
power, revocable by the Trustee, to make withdrawals and payments or to instruct
the Trustee to make withdrawals and payments from the Funding Period Reserve
Account for the purposes of carrying out the Servicer’s or Trustee’s duties
hereunder.
(b) The
Servicer shall deposit $3,705,000 into the Funding Period Reserve Account on
the
Closing Date. Funds on deposit in the Funding Period Reserve Account
(after giving effect to any withdrawals from the Funding Period Reserve Account)
shall be invested by the Trustee at the direction of the Servicer in Permitted
Investments so that funds will be available for withdrawal on the following
Distribution Date. The interest and other investment income (net of
investment expenses and losses) earned on such investments shall be deposited
in
the Collection Account on each Distribution Date and treated as Collections
of
Finance Charge Receivables allocated to the Series 2007-1 Certificates for
the
preceding Due Period and available to be applied as Available
Funds.
(c) On
or before each Distribution Date with respect to the Funding Period, the Trustee
at the direction of the Servicer shall (i) withdraw from the Funding Period
Reserve Account an amount equal to the Funding Period Reserve Draw Amount for
such Distribution Date and deposit such amount into the Collection Account
for
application as Available Funds and (ii) deposit in the Funding Period Reserve
Account an amount equal to the amount specified in, and otherwise in accordance
with, subsection 4.11(r).
59
(d) The
Funding Period Reserve Account shall be terminated following the earlier to
occur of (a) the completion of the Funding Period and (b) the termination of
the
Trust pursuant to the Agreement. Upon the termination of the Funding
Period Reserve Account, all amounts on deposit therein (after giving effect
to
any withdrawal from the Funding Period Reserve Account on such date as described
above) shall be distributed to the Holder of the Exchangeable Seller
Certificate.
SECTION
4.21. Adjustments
to Investor Interest.
(a) Series
2007-1 shall be a Paired Series with respect to Series 2002-1. On any
Business Day during the Funding Period, the Series Investor Interest will be
increased (but not above an amount equal to the Initial Investor Interest)
by
the amount of any decrease in the Investor Interest for Series 2002-1 on or
prior to such day, provided that the aggregate amount of such increases pursuant
to this clause (a) do not exceed the aggregate amount of the Investor Interest
for Series 2002-1. The Class A Investor Interest shall be
increased by an amount equal to the Class A Percentage of the amount of such
decrease, the Class M Investor Interest shall be increased by an amount
equal to the Class M Percentage of the amount of such decrease, the Class B
Investor Interest shall be increased by an amount equal to the Class B
Percentage of the amount of such decrease, the Class C Investor Interest shall
be increased by an amount equal to the Class C Percentage of the amount of
such
decrease, and the Class D Investor Interest shall be increased by an amount
equal to the Class D Percentage of the amount of such decrease (which increase
shall be allocated between the Class D-1 Investor Interest and the Class D-2
Investor Interest as provided in the Class D Purchase Agreements), whereupon
the
Trustee shall instruct the Servicer to withdraw from the Pre-Funding Account
and
pay to the Seller an amount equal to the increase in the Series Investor
Interest.
(b) The
Seller may on any Business Day during the Funding Period determine to increase
the Series Investor Interest amount up to the Initial Investor Interest by
transferring new Receivables to the Trust so long as such increase to the Series
Investor Interest would not cause the Seller Interest to be reduced below zero
or cause an Early Amortization Event to occur with respect to any outstanding
Series. Upon determining to increase the Series Investor Interest
pursuant to this Section 4.21(b), the Seller shall deliver to the Servicer
and the Trustee an Officers’ Certificate specifying the amount of the increase
in the Series Investor Interest the Seller has determined to make and certifying
that such increase to the Series Investor Interest will not cause the Seller
Interest to be reduced below zero or cause an Early Amortization Event to occur
with respect to any outstanding Series. Upon receipt of such
Officer’s Certificate by the Trustee, the Class A Investor Interest shall
be increased by an amount equal to the Class A Percentage of the amount of
such
increase, the Class M Investor Interest shall be increased by an amount
equal to the Class M Percentage of the amount of such increase, the Class B
Investor Interest shall be increased by an amount equal to the Class B
Percentage of the amount of such increase, the Class C Investor Interest shall
be increased by an amount equal to the Class C Percentage of the amount of
such
increase, the Class D Investor Interest shall be increased by an amount equal
to
the Class D Percentage of the amount of such increase (which increase shall
be
allocated between the Class D-1 Investor Interest and the Class D-2 Investor
Interest as provided in the Class D Purchase Agreements), whereupon the Trustee
shall instruct the Servicer to withdraw from the Pre-Funding Account and pay
to
the Seller an amount equal to the increase in the Series Investor
Interest.
60
SECTION
4.22. Hedge
Reserve Account. (a) The Seller hereby directs the Servicer, for
the benefit of the Hedge Counterparty, to establish and maintain or cause to
be
established and maintained in the name of the Trustee and for the Trustee,
on
behalf of the Hedge Counterparty, with a Qualified Depository Institution (which
initially shall be the Trustee) a segregated trust account (the “Hedge
Reserve Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Hedge
Counterparty. The Seller does hereby transfer, assign, set over and
otherwise convey to the Trust for the benefit of the Hedge Counterparty, without
recourse, all of its right, title and interest (if any) in, to and under the
Hedge Reserve Account, any cash and/or investments on deposit therein and any
proceeds of the foregoing, including the investment earnings. The
Hedge Reserve Account shall be owned by, and under the sole dominion and control
of, the Trustee for the benefit of the Hedge Counterparty. If, at any
time, the institution holding the Hedge Reserve Account ceases to be a Qualified
Depository Institution, the Seller shall direct the Servicer to establish within
10 Business Days a new Hedge Reserve Account meeting the conditions specified
above with a Qualified Depository Institution, transfer any cash and/or any
investment to such new Hedge Reserve Account and from the date such new Hedge
Reserve Account is established, it shall be the “Hedge Reserve
Account.” In addition, after five days notice to the Trustee, the
Seller may direct the Servicer to establish a new Hedge Reserve Account meeting
the conditions specified above with a different Qualified Depository
Institution, transfer any cash and/or investments to such new Hedge Reserve
Account and from the date such new Hedge Reserve Account is established, it
shall be, the “Hedge Reserve Account.” Pursuant to the authority
granted to the Servicer in subsection 3.1(b) of the Agreement, the Servicer
shall have the power, revocable by the Trustee, to make withdrawals and payments
or to instruct the Trustee to make withdrawals and payments from the Hedge
Reserve Account for the purposes of carrying out the Servicer’s or Trustee’s
duties hereunder.
(b) The
Servicer shall deposit $1,700,000 into the Hedge Reserve Account on the Closing
Date. On each Distribution Date prior to the termination of the Hedge
Reserve Account pursuant to subsection 4.22(d), the Trustee at the direction
of
the Servicer shall deposit in the Hedge Reserve Account an amount equal to
the
amount specified in, and otherwise in accordance with, subsection
4.11(t). Funds on deposit in the Hedge Reserve Account (after giving
effect to any withdrawals from the Hedge Reserve Account) shall be invested
by
the Trustee at the direction of the Servicer in Permitted Investments so that
funds will be available for withdrawal on the following Distribution
Date. The interest and other investment income (net of investment
expenses and losses) earned on such investments shall be deposited in the
Collection Account each Distribution Date following and treated as Collections
of Finance Charge Receivables allocated to the Series 2007-1 Certificates for
the preceding Due Period and available to be applied as Available
Funds.
(c) Upon
termination of any Interest Rate Swap Agreement for which a partial or early
termination fee (such fee, a “Hedge Termination Fee”) is incurred
pursuant to the terms of the applicable Interest Rate Swap Agreement, the
Trustee shall, at the written direction of the Servicer, withdraw the amount
of
such termination fee from the Hedge Reserve Account and distribute such
termination fee directly to the applicable Hedge Counterparty. If
more than one Hedge Termination Fee shall be outstanding at any time, the
Trustee shall make such distributions to the applicable Hedge Counterparties
in
the following order of priority: first, to
61
the
Hedge
Counterparty for the Class A Swap; second, to the Hedge Counterparty for the
Class M Swap; and third, to the Hedge Counterparty for the Class B
Swap.
(d) The
Hedge Reserve Account shall be terminated following the earliest to occur of
(a)
the Lane ▇▇▇▇▇▇ Portfolio Distribution Date, (b) February 15, 2008, (c) the
date
on which the Originator acquires the Lane ▇▇▇▇▇▇ Portfolio, and (d) the
termination of the Trust pursuant to the Agreement. Upon the
termination of the Hedge Reserve Account, all amounts on deposit therein (after
giving effect to any withdrawal from the Hedge Reserve Account on such date
as
described above) shall be distributed to the Holder of the Exchangeable Seller
Certificate.
SECTION
4.23 Designation
of Trustee’s Jurisdiction. The Trustee hereby agrees that its
jurisdiction for purposes of the applicable UCC is New York.
SECTION
4.24 Permitted
Investments. In selecting Permitted Investments for the funds on
deposit in the Collection Account, the Funding Period Reserve Account, the
Hedge
Reserve Account and the Pre-Funding Account, the Servicer shall make such
selection after consultation with the Trustee and with a view to ensuring that
an amount equal to the sum of (i) Monthly Interest due on each Distribution
Date, and (ii) during the Amortization Period, the amount of principal to be
paid on the Series 2007-1 Certificates on such Distribution Date will be held
by
the Trustee in uninvested funds on the Business Day immediately prior to such
Distribution Date.
SECTION
9. Article
V of the Agreement. Article V of the Agreement shall read in its
entirety as follows and shall be applicable only to the Series 2007-1
Certificates:
ARTICLE
V.
DISTRIBUTIONS
AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
SECTION
5.1. Distributions.
(a) On
each Distribution Date, the Trustee shall distribute (in accordance with the
certificate delivered by the Servicer to the Trustee pursuant to subsection
3.4(b)) to each Class A Certificateholder of record on the immediately preceding
Record Date (other than as provided in Section 12.3 respecting a final
distribution) such Class A Certificateholder’s prorata share
(based on the aggregate Undivided Trust Interests represented by Class A
Certificates held by such Class A Certificateholder) of amounts on deposit
in
the Collection Account as are payable to the Class A Certificateholders pursuant
to Section 4.9 or 4.11 of this Supplement by check mailed to each Class A
Certificateholder (at such Class A Certificateholder’s address as it appears in
the Certificate Register), except that with respect to Class A Certificates
registered in the name of the nominee of a Clearing Agency, such distribution
shall be made in immediately available funds.
(b) On
each Distribution Date, the Trustee shall distribute (in accordance with the
certificate delivered by the Servicer to the Trustee pursuant to subsection
3.4(b)) to each Class M Certificateholder of record on the immediately preceding
Record Date (other than as provided in Section 12.3 respecting a final
distribution) such Class M Certificateholder’s pro rata share
62
(based
on
the aggregate Undivided Trust Interests represented by Class M Certificates
held
by such Class M Certificateholder) of amounts on deposit in the Collection
Account as are payable to the Class M Certificateholders pursuant to Section
4.9
or 4.11 of this Supplement by check mailed to each Class M Certificateholder
(at
such Class M Certificateholder’s address as it appears in the Certificate
Register), except that with respect to Class M Certificates registered in the
name of the nominee of a Clearing Agency, such distribution shall be made in
immediately available funds.
(c) On
each Distribution Date, the Trustee shall distribute (in accordance with the
certificate delivered by the Servicer to the Trustee pursuant to subsection
3.4(b)) to each Class B Certificateholder of record on the immediately preceding
Record Date (other than as provided in Section 12.3 respecting a final
distribution) such Class B Certificateholder’s pro rata share (based on the
aggregate Undivided Trust Interests represented by Class B Certificates
held by such Class B Certificateholder) of amounts on deposit in the Collection
Account as are payable to the Class B Certificateholders pursuant to Section
4.9
or 4.11 of this Supplement by check mailed to each Class B Certificateholder
(at
such Class B Certificateholder’s address as it appears in the Certificate
Register), except that with respect to Class B Certificates registered in the
name of the nominee of a Clearing Agency, such distribution shall be made in
immediately available funds.
(d) Unless
otherwise specified in the Class C Purchase Agreement, on each Distribution
Date, the Trustee shall distribute to each Class C Certificateholder of record
on the immediately preceding Record Date (other than as provided in Section
12.3
of the Agreement respecting a final distribution) such Class C
Certificateholder’s pro rata share (based on the aggregate Undivided
Trust Interests represented by Class C Certificates held by such Class C
Certificateholder) of amounts on deposit in the Collection Account as are
payable to the Class C Certificateholders pursuant to Section 4.9 or 4.11 of
this Supplement or the Class C Purchase Agreement by check mailed to each Class
C Certificateholder (at such Certificateholder’s address as it appears in the
Certificate Register) or by wire transfer of immediately available funds to
such
account designated in writing by such Class C Certificateholder to the Trustee
not later than the Distribution Date preceding such Distribution
Date.
(e) Unless
otherwise specified in the Class D-1 Purchase Agreement, on each Distribution
Date, the Trustee shall distribute to each Class D-1 Certificateholder of record
on the immediately preceding Record Date (other than as provided in Section
12.3
of the Agreement respecting a final distribution) such Class D-1
Certificateholder’s pro rata share (based on the aggregate Undivided Trust
Interests represented by Class D-1 Certificates held by such Class D-1
Certificateholder) of amounts on deposit in the Collection Account as are
payable to the Class D-1 Certificateholders pursuant to Section 4.9 or 4.11
of
this Supplement or the applicable Class D Purchase Agreement by check mailed
to
each Class D-1 Certificateholder (at such Class D-1 Certificateholder’s address
as it appears in the Certificate Register) or by wire transfer of immediately
available funds to such account designated in writing by such Class D-1
Certificateholder to the Trustee not later than the Distribution Date preceding
such Distribution Date.
(f) Unless
otherwise specified in the Class D-2 Purchase Agreement, on each Distribution
Date, the Trustee shall distribute to each Class D-2 Certificateholder of record
on
63
the
immediately preceding Record Date (other than as provided in Section 12.3 of
the
Agreement respecting a final distribution) such Class D-2 Certificateholder’s
pro rata share (based on the aggregate Undivided Trust Interests represented
by
Class D-2 Certificates held by such Class D-2 Certificateholder) of amounts
on
deposit in the Collection Account as are payable to the Class D-2
Certificateholders pursuant to Section 4.9 or 4.11 of this Supplement or the
applicable Class D Purchase Agreement by check mailed to each Class D-2
Certificateholder (at such Class D-2 Certificateholder’s address as it appears
in the Certificate Register) or by wire transfer of immediately available funds
to such account designated in writing by such Class D-2 Certificateholder to
the
Trustee not later than the Distribution Date preceding such Distribution
Date.
SECTION
5.2. Monthly Certificateholders’ Statement.
(a) On
or before each Distribution Date, the Paying Agent shall forward to each Series
2007-1 Certificateholder and each Rating Agency a statement substantially in
the
form of Exhibit F to this Supplement prepared by the Servicer, appropriately
completed.
(b) Annual
Certificateholders’ Tax Statement. On or before January 31 of each
calendar year, beginning with calendar year 2008, the Trustee shall distribute
to each Person who at any time during the preceding calendar year was a Series
2007-1 Certificateholder, a statement prepared by the Servicer containing the
information required to be contained in the regular monthly statement to Series
2007-1 Certificateholders, aggregated for such calendar year or the applicable
portion thereof during which such Person was a Series 2007-1 Certificateholder,
together with such other customary information (consistent with the treatment
of
the Class A Certificates, the Class M Certificates and the Class B
Certificates as debt) as the Servicer deems necessary or desirable to enable
the
Series 2007-1 Certificateholders to prepare their tax returns. The
Servicer will provide such information to the Trustee as soon as possible after
January 1 of each calendar year. Such obligations of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
SECTION
10. Series
2007-1 Early Amortization Events. If any one of the following
events shall occur with respect to the Series 2007-1 Certificates:
(a) failure
on the part of the Seller or the Originator (i) to make any payment or deposit
required by the terms of (A) the Agreement, (B) this Supplement or (C) the
Purchase Agreement, on or before the date occurring five Business Days after
the
date such payment or deposit is required to be made herein or (ii) duly to
observe or perform in any material respect any of its covenants or agreements
set forth in the Agreement, this Supplement or the Purchase Agreement, which
failure has a material adverse effect on the Class A Certificateholders, the
Class M Certificateholders, the Class B Certificateholders or the Class C
Certificateholders and which continues unremedied for a period of 35 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Seller by the Trustee, or to the Seller
and the Trustee by the Controlling Certificateholders, and continues to affect
materially and adversely the interests of the Class A Certificateholders, the
Class M Certificateholders, the Class B Certificateholders or the Class C
Certificateholders for such period;
64
(b) any
representation or warranty made by the Seller or the Originator in the
Agreement, this Supplement or the Purchase Agreement, or any information
contained in a computer file or microfiche or written list required to be
delivered by the Seller pursuant to Section 2.1 or 2.6 or by the Originator
pursuant to Section 1.1 or 2.4(e) of the Purchase Agreement, (i) shall
prove to have been incorrect in any material respect when made or when
delivered, which continues to be incorrect in any material respect for a period
of 60 days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Seller by the Trustee, or
to
the Seller and the Trustee by the Controlling Certificateholders, and (ii)
as a
result of which the interests of the Class A Certificateholders, the Class
M
Certificateholders, the Class B Certificateholders or the Class C
Certificateholders are materially and adversely affected and continue to be
materially and adversely affected for such period; provided,
however, that a Series 2007-1 Early Amortization Event pursuant to
this
subsection 9(b) shall not be deemed to have occurred hereunder if the Seller
has
accepted reassignment of the related Receivable, or all of such Receivables,
if
applicable, during such period in accordance with the provisions of the
Agreement;
(c) the
average Portfolio Yield for any three consecutive Due Periods is reduced to
a
rate which is less than the average Base Rate for such period;
(d) the
Seller shall fail to convey Receivables arising under Additional Accounts to
the
Trust, as required by subsection 2.6(a) of the Agreement;
(e) any
Servicer Default shall occur which would have a material adverse effect on
the
Class A Certificateholders, the Class M Certificateholders, the Class B
Certificateholders or the Class C Certificateholders;
(f) the
Class
A Investor Interest shall not be paid in full on the Class A Expected Final
Payment Date, or the Class M Investor Interest shall not be paid in full on
the
Class M Expected Final Payment Date, or the Class B Investor Interest shall
not
be paid in full on the Class B Expected Final Payment Date;
(g) Fashion
Service Corp. shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to all or substantially all
of
its property, or a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against Fashion Service
Corp.; or Fashion Service Corp. shall admit in writing its inability to pay
its
debts generally as they become due, commence or have commenced against it
(unless dismissed within thirty days) as a debtor a proceeding under any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
(h) the
early
termination of the Class A Swap, the Class M Swap, the Class B Swap or the
Class
C Cap unless the Trustee obtains a replacement Class A Swap, Class M Swap,
Class
B Swap or Class C Cap, as applicable, or enters into another interest rate
hedging arrangement with respect to the Class A-1 Certificates, Class M-1
Certificates, Class B-1
65
Certificates
or Class C Certificates that satisfies the Rating Agency Condition within 5
Business Days following the termination of such Class A Swap, Class M Swap,
Class B Swap or Class C Cap, as applicable; provided that the partial
termination of an Interest Rate Hedge Agreement due to the occurrence of the
Lane ▇▇▇▇▇▇ Portfolio Distribution Date, as contemplated by the Interest Rate
Hedge Agreements, shall not be a Series 2007-1 Early Amortization Event;
or
(i) failure
of any Hedge Counterparty to make a payment under any of the Interest Rate
Hedge
Agreements for the Class A-1 Certificates, Class M-1 Certificates, Class B-1
Certificates or Class C Certificates in respect of a payment obligation arising
as a result of LIBOR being greater than the specified fixed rate for the related
Interest Rate Hedge Agreement, and the failure is not cured within 5 Business
Days after payment is due;
then,
(x)
in the case of any event described in subparagraph (a), (b) or (e) after the
applicable grace period set forth in such subparagraphs, either the Trustee
or
the Controlling Certificateholders by notice then given in writing to the Seller
and the Servicer (and to the Trustee if given by the Certificateholders) may
declare that an early amortization event (a “Series 2007-1 Early Amortization
Event”) has occurred as of the date of such notice and (y) in the case of
any event described in subparagraphs (c), (d), (f), (g), (h) or (i), a Series
2007-1 Early Amortization Event shall occur without any notice or other action
on the part of the Trustee or the Series 2007-1 Certificateholders immediately
upon the occurrence of such event.
SECTION
11. Series
2007-1 Termination. The right of the Series 2007-1
Certificateholders to receive payments from the Trust will terminate on the
first Business Day following the Series 2007-1 Termination Date. For
purposes of Series 2007-1, the reference to “110%” in Section 12.1(c) of the
Agreement shall be deemed to be a reference to “110% (or if such percentage
would cause an Early Amortization Event to occur with respect to any other
outstanding Series, the greater of (x) such lesser percentage as would not
cause
such Early Amortization Event and (y) the then current Series Allocation
Percentage)”. The proceeds of such sale shall be treated as
Collections on the Receivables that are allocated to Series 2007-1 pursuant
to
the Agreement and this Supplement and shall be distributed in accordance with
the terms of this Supplement; provided, however, that the Servicer shall
determine conclusively the amount of such proceeds that are allocable to Finance
Charge Receivables and the amount of such proceeds that are allocable to
Principal Receivables.
SECTION
12. Ratification
of Agreement. As supplemented by this Supplement, the Agreement
is in all respects ratified and confirmed and the Agreement as so supplemented
by this Supplement shall be read, taken, and construed as one and the same
instrument.
SECTION
13. Counterparts. This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
SECTION
14. No
Petition. Each of the Trustee, the Servicer and the Seller (with
respect to the Trust only), by entering into this Supplement and each Series
2007-1 Certificateholder, by accepting a Series 2007-1 Certificate, shall not,
prior to the date which is one year and one day after the last day on which
any
Investor Certificate shall have been outstanding, acquiesce, petition or
otherwise invoke or cause the Trust or the Seller to invoke the
66
process
of any Governmental Authority for the purpose of commencing or sustaining a
case
against the Trust or the Seller under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or
the
Seller or any substantial part of its property or ordering the winding up or
liquidation of the affairs of the Trust or the Seller.
SECTION
15. Forms
of Series 2007-1 Certificates.
(a) Form
of
Certificates. The
form of each of the Class A-1 Certificates, the Class A-2 Certificates, the
Class M-1 Certificates, the Class M-2 Certificates, the Class B-1 Certificates,
the Class B-2 Certificates, the Class C Certificates, the Class D-1 Certificates
and the Class D-2 Certificates, including the Certificate of Authentication,
shall be substantially as set forth respectively as Exhibits ▇-▇, ▇-▇, ▇-▇,
▇-▇,
▇-▇, ▇-▇, ▇, ▇-▇ and D-2 hereto, respectively.
(b) Book-Entry
Certificates.
(i) The
Class
A Certificates, the Class M Certificates and the Class B Certificates that
are not sold in offshore transactions in reliance on Regulation S under the
Securities Act shall be offered and sold in reliance on the exemption from
registration under Rule 144A (except for any sale directly from the Trust)
and
shall be issued initially in the form of one or more permanent global
certificates in definitive, fully registered form without interest coupons
with
the applicable legends set forth in Exhibits A, M and B hereto, as applicable,
added to the form of such Certificates (each, a “Restricted Book-Entry
Certificate”), which shall be registered in the name of the nominee of the
Depository and deposited with the Trustee, as custodian for the
Depository. The aggregate principal amount of the Restricted
Book-Entry Certificates may from time to time be increased or decreased by
adjustments made on the records of the Trustee or the Depository or its nominee,
as the case may be, as hereinafter provided.
(ii) The
Class
A Certificates, the Class M Certificates and the Class B Certificates offered
and sold in offshore transactions in reliance on Regulation S under the
Securities Act shall be issued initially, and during the “40 day distribution
compliance period” described below shall remain, in the form of temporary global
certificates, without interest coupons (the “Regulation S Temporary
Book-Entry Certificates”), to be held by the Depository and registered in
the name of a nominee of the Depository or its custodian for the respective
accounts of Euroclear and Clearstream duly executed by the Seller and
authenticated by the Trustee as hereinafter provided. The “40 day
distribution compliance period” shall be terminated upon the later of (i) the
end of the distribution compliance period (as defined in Rule 902 of the
Securities Act) and (ii) receipt by the Trustee of a written certificate from
the Depository, together with copies of certificates substantially in the form
of Exhibit I from Euroclear or Clearstream, certifying that the beneficial
owner
of such Regulation S Temporary Book-Entry Certificate is a non-U.S.
person. Following the termination of the 40 day distribution
compliance period, beneficial interests in the Regulation S Temporary Book-Entry
Certificates may be exchanged for beneficial interests in permanent Book-Entry
Certificates (the “Regulation S Permanent Book-Entry Certificates”; and
together with the Regulation S Temporary
67
Book-Entry
Certificate, the “Regulation S Book-Entry Certificates”), which will be
duly executed by the Seller and authenticated by the Trustee as hereinafter
provided and which will be deposited with the Trustee, as custodian for the
Depository, and registered in the name of the Depository or a nominee
thereof. Upon any exchange of a portion of a Regulation S Temporary
Book-Entry Certificate for a comparable portion of a Regulation S Permanent
Book-Entry Certificate, the Trustee shall endorse on the schedules affixed
to
each of such Regulation S Book-Entry Certificate (or on continuations of such
schedules affixed to each of such Regulation S Book-Entry Certificate and made
parts thereof) appropriate notations evidencing the date of transfer and (x)
with respect to the Regulation S Temporary Book-Entry Certificate, a decrease
in
the principal amount thereof equal to the amount covered by the applicable
certification and (y) with respect to the Regulation S Permanent Book-Entry
Certificate, an increase in the principal amount thereof equal to the principal
amount of the decrease in the Regulation S Temporary Book-Entry
Certificate.
(c) Definitive
Series 2007-1 Certificates. (i) The Class C Certificates and the
Class D Certificates shall be issued in the form of Definitive Certificates
with
the applicable legends set forth in Exhibits C and D, hereto, which shall be
registered in the name of the Holder or a nominee thereof, duly executed by
the
Trust and authenticated by the Trustee as hereinafter
provided. Except as provided in Section 6.12 of the Agreement, owners
of beneficial interests in the Book-Entry Certificates shall not be entitled
to
receive Definitive Certificates.
SECTION
16. Transfer
Restrictions.
(a) No
Series
2007-1 Certificate may be sold or transferred (including, without limitation,
by
pledge or hypothecation) unless such sale or transfer is exempt from the
registration requirements of the Securities Act and is exempt from the
registration requirements under applicable state securities laws.
No
Class
A Certificate, Class M Certificate or Class B Certificate may be offered, sold
or delivered within the United States or to, or for the benefit of, U.S. Persons
as defined in Regulation S except to QIBs purchasing for their own account
or
for the accounts of one or more QIBs, for which the purchaser is acting as
fiduciary or agent in accordance with Rule 144A in reliance on the exemption
from registration in Section 4(2) of the Securities Act. The
Class A Certificates, the Class M Certificates and the Class B Certificates
may
also be sold or resold, as the case may be, in offshore transactions to non-U.S.
Persons in reliance on Regulation S under the Securities Act.
No
Class
C Certificate or Class D Certificate may be offered, sold or delivered to,
or
for the benefit of, any Person except U.S. Persons (as defined in Section
7701(a)(30) of the Code) within the United States that are QIBs purchasing
for
their own account or for the accounts of one or more QIBs, for which the
purchaser is acting as a fiduciary or agent in accordance with Rule 144A in
reliance on the exemption for registration in Section 4(2) of the Securities
Act.
None
of
the Trust, the Trustee, the Seller, the Originator, the Servicer or any other
Person may register the Series 2007-1 Certificates under the Securities Act
or
any applicable securities laws.
68
(b) Notwithstanding
any provision to the contrary herein, so long as a Book-Entry Certificate
remains outstanding and is held by or on behalf of the Depository, transfers
of
a Book-Entry Certificate, in whole or in part, shall only be made in accordance
with this Section 16(b) and Section 6.10 of the Agreement.
(i) Subject
to clauses (ii) and (iii) of this Section 16(b), transfers of a Book-Entry
Certificate shall be limited to transfers of such Book-Entry Certificate in
whole, but not in part, to a nominee of the Depository or to a successor of
the
Depository or such successor’s nominee.
(ii) Regulation
S Book-Entry Certificate to Restricted Book-Entry Certificate. If
a holder of a beneficial interest in a Regulation S Book-Entry Certificate
wishes to transfer all or a part of its interest in such Regulation S Book-Entry
Certificate to a Person who wishes to take delivery thereof in the form of
a
Restricted Book-Entry Certificate, such holder may, subject to the terms hereof
and the rules and procedures of Euroclear or Clearstream, as the case may be,
and the Depository exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Book-Entry Certificate of the
same Class. Upon receipt by the Transfer Agent and Registrar, of
(A) instructions from Euroclear, Clearstream or the Depository, as the case
may be, directing the Trustee, as Transfer Agent and Registrar, to cause such
Restricted Book-Entry Certificate to be increased by an amount equal to such
beneficial interest in such Regulation S Book-Entry Certificate but not less
than the minimum denomination applicable to the related Class of Series 2007-1
Certificates, and (B) a certificate substantially in the form of Exhibit
G-1 hereto given by the prospective transferee of such beneficial interest
and
stating, among other things, that such transferee acquiring such interest in
a
Restricted Book-Entry Certificate is a QIB, is obtaining such beneficial
interest in a transaction pursuant to Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction, then Euroclear, Clearstream or the Trustee, as Transfer
Agent and Registrar, as the case may be, will instruct the Depository to reduce
such Regulation S Book-Entry Certificate by the aggregate principal amount
of
the interest in such Regulation S Book-Entry Certificate to be transferred,
increase the Restricted Book-Entry Certificate specified in such instructions
by
an amount equal to such reduction in such principal amount of the Regulation
S
Book-Entry Certificate and make the corresponding adjustments to the applicable
participants’ accounts.
(iii) Restricted
Book-Entry Certificate to Regulation S Book-Entry Certificate. If
a holder of a beneficial interest in a Restricted Book-Entry Certificate wishes
to transfer all or a part of its interest in such Restricted Book-Entry
Certificate to a Person who wishes to take delivery thereof in the form of
a
Regulation S Book-Entry Certificate, such holder may, subject to the terms
hereof and the rules and procedures of Euroclear or Clearstream, as the case
may
be, and the Depository exchange or cause the exchange of such interest for
an
equivalent beneficial interest in a Regulation S Book-Entry Certificate of
the same Class. Upon receipt by the Trustee, as Transfer Agent and
Registrar, of (A) instructions from Euroclear, Clearstream or the
Depository, as the case may be, directing the Trustee, as Transfer Agent and
Registrar, to cause such Regulation S Book-Entry Certificate to be
increased by an amount equal to the beneficial
69
interest
in such Restricted Book-Entry Certificate but not less than the minimum
denomination applicable to the related Class of Series 2007-1 Certificates
to be
exchanged, and (B) a certificate substantially in the form of Exhibit G-2
hereto given by the prospective transferee of such beneficial interest and
stating, among other things, that such transferee acquiring such interest in
a
Regulation S Book-Entry Certificate is a non-U.S. Person located outside
the United States and such transfer is being made pursuant to Rule 903 or 904
under Regulation S of the Securities Act, then Euroclear, Clearstream or the
Trustee, as Transfer Agent and Registrar, as the case may be, will instruct
the
Depository to reduce such Restricted Book-Entry Certificate by the aggregate
principal amount of the interest in such Restricted Book-Entry Certificate
to be
transferred, increase the Regulation S Book-Entry Certificate specified in
such
instructions by an aggregate principal amount equal to such reduction in the
principal amount of the Restricted Book-Entry Certificate and make the
corresponding adjustments to the applicable participants’ accounts.
(iv) Other
Exchanges. In the event that a Class A Certificate, a Class M
Certificate or a Class B Certificate initially represented by a Book-Entry
Certificate is exchanged for one or more Definitive Certificates pursuant to
Section 6.12 of the Agreement, the related Class A Certificateholder, Class
M
Certificateholder or Class B Certificateholder, as the case may be, shall be
required to deliver a representation letter with respect to the matters
described in subsections 16(c) and (d) of this Supplement. Such
Definitive Certificates may be exchanged for one another only upon delivery
of a
representation letter with respect to the matters described in subsections
16(c)
and (d) of this Supplement and in accordance with such procedures as are
substantially consistent with the provisions above (including certification
requirements intended to insure that such transfers comply with Rule 144A or
are
to non-U.S. Persons, or otherwise comply with Regulation S under the Securities
Act, as the case may be) and as may be from time to time adopted by the Trust
and the Trustee.
(c) Each
beneficial owner of Restricted Book-Entry Certificates or Regulation S
Book-Entry Certificates will be deemed to represent and agree as follows (terms
used in this paragraph that are defined in Rule 144A or Regulation S under
the
Securities Act are used herein as defined therein):
(i) The
owner
either (A)(1) is a QIB, (2) is aware that the sale of the Class A
Certificates, Class M Certificates or Class B Certificates, as applicable,
to it (other than the initial sale by the Trust) is being made in reliance
on
the exemption from registration provided by Rule 144A under the Securities
Act
and (3) is acquiring the Class A Certificates, Class M Certificates or
Class B Certificates, as applicable, for its own account or for one or more
accounts, each of which is a QIB, and as to each of which the owner exercises
sole investment discretion, and in a principal amount of not less than $100,000
for the purchaser or for each such account, as the case may be, or (B) (1)
is
not a U.S. Person (as defined under Regulation S of the Securities Act) and
(2)
is purchasing the Class A Certificates, Class M Certificates or
Class B Certificates, as applicable, pursuant to Rule 903 or 904 of
Regulation S of the Securities Act. The owner has such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of its investment in the Class A Certificates, Class
M
70
Certificates
or Class B Certificates, as applicable, and the owner and any accounts for
which it is acting are each able to bear the economic risk of the owner’s or its
investment. The owner understands that in the event that at any time
the Trust or the Trustee determines that such purchaser was in breach, at the
time given, of any of the representations or agreements set forth in this clause
(i), upon direction from the Trust the Trustee shall consider the acquisition
of
the related Class A Certificates, Class M Certificates or Class B
Certificates, as applicable, void and require that the related Class A
Certificates, Class M Certificates or Class B Certificates, as applicable,
be transferred to a Person designated by the Trust.
(ii) The
owner
understands that the Class A Certificates, Class M Certificates or
Class B Certificates, as applicable, are being offered only in a
transaction not involving any public offering in the United States within the
meaning of the Securities Act, the Class A Certificates, Class M
Certificates or Class B Certificates, as applicable, have not been and will
not be registered under the Securities Act, and, if in the future the owner
decides to offer, resell, pledge or otherwise transfer the Class A
Certificates, Class M Certificates or Class B Certificates, as applicable,
such Class A Certificates, Class M Certificates or Class B
Certificates, as applicable, may be offered, resold, pledged or otherwise
transferred in accordance with the Agreement and this Supplement and the
applicable legend on such Series 2007-1 Certificates set forth in Exhibit A,
M
or B hereto, as applicable. The owner acknowledges that no
representation is made by the Trust, the Trustee, the Seller or the Initial
Purchaser, as the case may be, as to the availability of any exemption under
the
Securities Act or any State securities laws for resale of the Series 2007-1
Certificates.
(iii) The
owner
is not purchasing the Class A Certificates, Class M Certificates or
Class B Certificates, as applicable, with a view to the resale,
distribution or other disposition thereof in violation of the Securities
Act. The owner understands that an investment in the Series 2007-1
Certificates involves certain risks, including the risk of loss of all or a
substantial part of its investment under certain circumstances. The
owner has had access to such financial and other information concerning the
Originator, the Seller, the Servicer, the Trust and the Series 2007-1
Certificates as it deemed necessary or appropriate in order to make an informed
investment decision with respect to its purchase of the Class A
Certificates, Class M Certificates or Class B Certificates, as applicable,
including an opportunity to ask questions of and request information from the
Originator, the Seller and the Servicer.
(iv) In
connection with the purchase of the Series 2007-1
Certificates: (A) none of the Trust, the Initial Purchaser or
the Trustee is acting as a fiduciary or financial or investment adviser for
the
owner; (B) the owner is not relying (for purposes of making any investment
decision or otherwise) upon any advice, counsel or representations (whether
written or oral) of the Originator, the Seller, the Servicer, the Trust, the
Initial Purchaser or the Trustee or any of their Affiliates other than, in
the
case of the Trust, in a current offering memorandum for such Series 2007-1
Certificates and any representations expressly set forth in a written agreement
with such party; (C) none of the Originator, the Seller, the Trust, the
Initial Purchaser or the Trustee or any of their Affiliates has given to the
owner (directly or indirectly through any other Person) any
71
assurance,
guarantee, or representation whatsoever as to the expected or projected success,
profitability, return, performance, result, effect, consequence, or benefit
(including legal, regulatory, tax, financial, accounting, or otherwise) of
its
purchase, (D) the owner has consulted with its own legal, regulatory, tax,
business, investment, financial, and accounting advisers to the extent it has
deemed necessary, and it has made its own investment decisions (including
decisions regarding the suitability of any transaction pursuant to the Agreement
or this Supplement) based upon its own judgment and upon any advice from such
advisers as it has deemed necessary and not upon any view expressed by the
Originator, the Seller, the Trust, the Initial Purchaser or the Trustee or
any
of their Affiliates; and (E) the owner is purchasing the Class A
Certificates, Class M Certificates or Class B Certificates, as applicable,
with a full understanding of all of the terms, conditions and risks thereof
(economic and otherwise), and is capable of assuming and willing to assume
(financially and otherwise) these risks.
(v) Neither
the owner nor such account was formed for the purpose of acquiring any Series
2007-1 Certificates (unless the Trust, in its sole discretion and with the
advice of counsel in respect of U.S. securities laws, expressly otherwise
permits). The owner and each such account agrees that it shall not
hold such Series 2007-1 Certificates for the benefit of any other Person and
shall be the sole beneficial owner thereof for all purposes and that it shall
not sell participation interests in the Series 2007-1 Certificates or enter
into
any other arrangement pursuant to which any other Person shall be entitled
to a
beneficial interest in the distributions on the Series 2007-1
Certificates. The owner understands and agrees that any purported
transfer of the Series 2007-1 Certificates to an owner that does not comply
with
the requirements of this clause (v) shall be null and void ab
initio. The owner understands that in the event that at any time
the Trustee has determined, or the Trust notifies the Trustee that the Trust
has
determined, that such purchaser was in breach, at the time given, of any of
the
representations or agreements set forth in clause (i) above, then the Trustee
shall consider the acquisition of the related Series 2007-1 Certificates void
and require that the related Series 2007-1 Certificates be transferred to a
Person designated by the Trust.
(vi) The
owner
understands that the Class A Certificates, Class M Certificates and Class B
Certificates will bear the applicable legend set forth in Exhibit A, M or B
hereto.
(vii) Either
(A) the owner is not acquiring such Series 2007-1 Certificate (or any interest
therein) with the assets of an “employee benefit plan” as defined in Section
3(3) of 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 plan assets
of
any of the foregoing (each, a “Benefit Plan Investor”) or (B) it is an
insurance company purchasing such Series 2007-1 Certificate (or interest
therein) with the assets of its general account and, at the time of acquisition
and throughout the period of holding, (x) it satisfies all of the conditions
of
Prohibited Transaction Class Exemption 95-60; (y) less than 25% of the assets
of
the general account are or represent assets of Benefit Plan Investors; and
(z)
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
72
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
the
owner is a non-U.S. or governmental plan, its acquisition, holding and
disposition of such Series 2007-1 Certificate (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.
(viii) If
such
owner is acquiring the Class A Certificates, the Class M Certificates or the
Class B Certificates in an “offshore transaction” (as defined in Regulation S),
it acknowledges that such Series 2007-1 Certificates will initially be
represented by the Regulation S Temporary Book-Entry Certificates and that
transfers thereof or any interest or participation therein are restricted as
described herein. It understands that the Temporary Regulation S
Book-Entry Certificate will bear a legend to the following effect unless the
Seller determines otherwise, consistent with applicable law:
“THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”). NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY INTEREST
HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE SERIES
2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS
OF
THE SERIES 2007-1 SUPPLEMENT.”
(ix) If
such
owner is acquiring the Class A Certificates, the Class M Certificates or the
Class B Certificates in an “offshore transaction” (as defined in Regulation S),
the owner is aware that the sale of such Series 2007-1 Certificates to it is
being made in reliance on the exemption from registration provided by Regulation
S and understands that the Series 2007-1 Certificates offered in reliance on
Regulation S under the Securities Act will be represented by one or more
Regulation S Book-Entry Certificates and will bear the appropriate legends
set
forth in Exhibits A, B and C as applicable. The Series 2007-1
Certificates so represented may not at any time be held by or on behalf of
U.S.
Persons as defined in Regulation S. Each of the owner and the related
Holder is not, and will not be, a U.S. Person as defined in
Regulation S. Before any interest in a Regulation S
Book-Entry Certificate may be offered, resold, pledged or otherwise transferred
to a Person who takes delivery in the form of a Restricted Book-Entry
Certificate, the transferor and the prospective transferee will be required
to
provide the Trustee with a written certification substantially in the form
of
Exhibit G-1 hereto as to compliance with the transfer restrictions.
73
(d) The
transfers of the Class C Certificates and the Class D Certificates are subject
to additional restrictions set forth in the Class C Purchase Agreement and
the
applicable Class D Purchase Agreement, respectively. Each of the
Class C Certificates and the Class D Certificates are Subject Instruments
subject to the transfer restrictions set forth in Section 6.3(e) of the
Agreement. Notwithstanding Section 6.3 of the Agreement, Seller shall
not execute, and the Transfer Agent and Registrar shall not register the
transfer of, (i) any Class C Certificate, if after giving effect to the
execution or transfer of such Class C Certificate, there would be more than
10
Private Holders of Class C Certificates or (ii) any Class D Certificate, if
after giving effect to the execution or transfer of such Class D Certificate,
there would be more than 5 Private Holders of Class D
Certificates. For purposes of this Supplement and the Agreement, each
Holder of a Class C Certificate or a Class D Certificate shall be a “Private
Holder.”
(e) If
any
Person owns either the Class D-1 Certificates or the Class D-2 Certificates,
such Person may, upon written request to the Trustee and Transfer Agent and
Registrar, exchange all or any portion of the Class D Certificates in one
subclass owned by it for a principal amount of Class D Certificates in the
other
subclass equal to the principal amount of Class D Certificates surrendered
to
the Transfer Agent and Registrar for exchange. Upon any such
exchange, the portion of the Class D Investor Interest attributable to one
subclass shall be proportionately reduced based on the proportion that the
outstanding principal amount of the Class D Certificates so exchanged bears
to
the outstanding principal amount of the Class D Certificates of such subclass
before giving effect to the exchange, and the portion of the Class D Investor
Interest attributable to the other subclass shall be increased by a
corresponding amount.
The
Trustee shall authenticate and deliver to each Person requesting such an
exchange such new Class D-1 Certificates and Class D-2 Certificates as such
Person shall be entitled to receive pursuant to this Section 16(e).
(f) Any
purported transfer of a Series 2007-1 Certificate of the Trust not in accordance
with the Agreement and Section 16 of this Supplement and, in the case of the
Class C Certificates and Class D Certificates, in accordance with the Class
C
Purchase Agreement and the applicable Class D Purchase Agreement, respectively
shall be null and void and shall not be given effect for any purpose
hereunder.
(g) Notwithstanding
anything contained in this Supplement to the contrary, neither the Trustee
nor
the Transfer Agent and Registrar shall be responsible or liable for compliance
with applicable federal or state securities laws (including, without limitation,
the Securities Act or Rule 144A or Regulation S promulgated thereunder), ERISA
or the Code (or any applicable regulations thereunder); provided that if a
specified transfer certificate or opinion of counsel is required by the express
terms of the Agreement and Section 16 of this Supplement or, in the case of
the Class C Certificates and Class D Certificates, the terms of the Class C
Purchase Agreement and applicable Class D Purchase Agreement, respectively,
to
be delivered to the Trustee or Transfer Agent and Registrar prior to
registration of transfer of a Series 2007-1 Certificate, the Trustee and/or
Transfer Agent and Registrar, as applicable, shall be under a duty to receive
such certificate or opinion of counsel and to examine the same to determine
whether it conforms on its face to the requirements hereof and, in the case
of
the Class C Certificates and Class D Certificates, the requirements of the
Class
C Purchase Agreement and Class D Purchase Agreements, respectively, and the
Trustee or Transfer Agent and Registrar, as the case may be,
74
shall
promptly notify the party delivering the same if it determines that such
certificate or opinion does not so conform.
(h) If
the
Trustee determines or is notified by the Trust, the Seller or the Servicer
that
(i) a transfer or attempted or purported transfer of any interest in any
Series 2007-1 Certificate was not consummated in compliance with the provisions
of Section 16 of this Supplement on the basis of an incorrect form or
certification from the transferee or purported transferee, (ii) a
transferee failed to deliver to the Trustee any form or certificate required
to
be delivered hereunder, (iii) the holder of any interest in a Series 2007-1
Certificate is in breach of any representation or agreement set forth in any
certificate or any deemed representation or agreement of such holder or (iv)
such transfer would have the effect of causing the assets of the Trust to be
deemed to be “plan assets” for purposes of ERISA, the Trustee will not register
such attempted or purported transfer and if a transfer has been registered,
such
transfer shall be absolutely null and void ab initio and shall vest no rights
in
the purported transferee (such purported transferee, a “Disqualified
Transferee”) and the last preceding holder of such interest in such Series
2007-1 Certificate that was not a Disqualified Transferee shall be restored
to
all rights as a holder thereof retroactively to the date of transfer of such
Series 2007-1 Certificate by such holder. The purported transferor of
such Series 2007-1 Certificates or beneficial interest therein shall be required
to cause the purported transferee to surrender the Series 2007-1 Certificates
or
any beneficial interest therein in return for a refund of the consideration
paid
therefor by such transferee (together with interest thereon) or to cause the
purported transferee to dispose of such Series 2007-1 Certificates or beneficial
interest promptly in one or more open market sales to one or more Persons each
of whom satisfies the requirements of the Agreement and this Supplement and
the
legends on the Series 2007-1 Certificates, and such purported transferor shall
take, and shall cause such transferee to take, all further action necessary
or
desirable, in the judgment of the Trustee, to ensure that such Series 2007-1
Certificates or any beneficial interest therein are held by Persons in
compliance therewith.
In
addition, the Trust may require that the interest in the Series 2007-1
Certificate referred to in (i), (ii) or (iii) in the preceding paragraph be
transferred to any Person designated by the Trust at a price determined by
the
Trust, based upon its estimation of the prevailing price of such interest and
each Holder, by acceptance of an interest in a Series 2007-1 Certificate,
authorizes the Trust to take such action. In any case, neither the
Trust nor the Trustee will be held responsible, other than the Trustee, to
the
extent of its obligations under Section 16(g) (but subject to
Article XI), for any losses that may be incurred as a
result of any required transfer under this
Section 16(h).
(i) To
the
extent applicable to the Trust, the Trust shall comply with the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and
Obstruct Terrorism Act of 2001, Pub. L. No. 107-56 (2001) (the “Patriot
Act”). To the extent applicable to the Trust, the Trust shall
impose additional transfer restrictions to comply with the Patriot Act and
each
Holder agrees to comply with such transfer restrictions. The Trust
shall notify the Trustee and the Transfer Agent and Registrar of the imposition
of any such transfer restrictions, and the Trustee shall give notice to all
Holders of such transfer restrictions. In order to comply with U.S.
laws and regulations, including the Patriot Act, the Trust may request from
an
owner or a prospective owner such information as it reasonably believes is
necessary to verify the identity of such owner or prospective owner, and to
determine whether such owner or
75
prospective
owner is permitted to be an owner of the Series 2007-1 Certificates pursuant
to
such laws and regulations. In the event of the delay or failure by
any owner or prospective owner of the Series 2007-1 Certificates to deliver
to
the Trust any such requested information, the Trust (or the Initial Purchaser,
the Servicer or the Trustee on its behalf) may (i) require such owner to
immediately transfer any Series 2007-1 Certificate, or beneficial interest
therein, held by such owner to an owner meeting the requirements of this
Supplement and the Agreement, (ii) refuse to accept the subscription of a
prospective owner, or (iii) take any other action required to comply with such
laws and regulations. In addition, following the delivery of any such
information, the Trust (or the Initial Purchaser, the Servicer or the Trustee
on
its behalf) may take any of the actions identified in clauses (i)-(iii)
above. In certain circumstances, the Trust, the Trustee, the Servicer
or the Initial Purchaser may be required to provide information about owners
to
regulatory authorities and to take any further action as may be required by
law. None of the Trust, the Trustee, the Servicer or the Initial
Purchaser will be liable for any loss or injury to an owner or prospective
owner
that may occur as a result of disclosing such information, refusing to accept
the subscription of any potential owner, redeeming any investment in a
certificate or taking any other action required by law.
SECTION
17. Certain
Amendments. In addition to any other provisions relating to
amendments in either the Agreement or this Supplement:
(i) This
Supplement may be amended by written agreement of the Seller, subject to
satisfaction of the Rating Agency Condition but without the consent of the
Servicer, Trustee or any Series 2007-1 Certificateholder, if such amendment
is
to the Series 2007-1 Supplement and is made to conform the terms of this
Supplement to the terms described in any offering memorandum relating to the
initial offer and sale of the Class A Certificates, Class M Certificates and
Class B Certificates; provided, however, that no such amendment shall be deemed
effective without the Trustee’s consent, if the Trustee’s rights, duties and
obligations hereunder are thereby modified; and
(ii) None
of
Sections 4.9(a), 4.9(b), 4.9(c) and 4.11(t) of this Supplement may be amended
in
a manner that adversely affects the payment priority of the Hedge Counterparty,
relative to the payment priority of the Certificateholders described in such
Section, without the prior written consent of the Hedge
Counterparty.
1) The
Servicer shall provide notice to the Rating Agencies of the waiver of any Early
Amortization Event with respect to Series 2007-1.
SECTION
18. Commercial
Law Representations and Warranties of the Seller. The Seller
hereby makes the following representations and warranties. Such
representations and warranties shall survive until the termination of the Series
2007-1 Supplement. Such representations and warranties speak as of
the date that the Collateral (as defined below) is transferred to the Trustee
but shall not be waived by any of the parties to this Supplement unless each
Rating Agency shall have notified the Seller, the Servicer and the Trustee
in
writing that such waiver will not result in a reduction or withdrawal of the
rating of any outstanding Series or Class to which it is a Rating
Agency.
76
(a) The
Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in favor of the Trustee in the Receivables described in Section
2.1 of the Agreement (the “Collateral”), which security interest is prior
to all other liens, and is enforceable as such against creditors of and
purchasers from the Seller.
(b) The
Collateral constitutes an “account” or a “general intangible” within the meaning
of the applicable UCC.
(c) At
the
time of its transfer of the Collateral pursuant to the Agreement, the Seller
owned and had good and marketable title to the Collateral free and clear of
any
lien, claim or encumbrance of any Person.
(d) The
Seller has caused or will have caused, within ten (10) days of the initial
execution of this Supplement, the filing of all appropriate financing statements
in the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the Collateral granted to
the
Trustee pursuant to the Agreement.
(e) Other
than the security interest granted to the Trustee pursuant to the Agreement,
the
Seller has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed the Collateral. The Seller has not authorized the
filing of and is not aware of any financing statements against the Seller that
include a description of the Collateral other than any financing statement
relating to the security interest granted to the Trustee pursuant to the
Agreement or that has been terminated. The Seller is not aware of any
judgment or tax lien filings against the Seller.
SECTION
19. Governing
Law. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION
20. Third
Party Beneficiary. The Hedge Counterparty is an intended
beneficiary of this Supplement; provided that any action to be taken to
enforce the terms of Supplement against the Seller or the Servicer shall be
taken by the Trustee for the benefit of the holders of the Series 2007-1
Certificates and the Hedge Counterparty as their interests appear.
77
IN
WITNESS WHEREOF, the Seller, the Servicer and the Trustee have caused this
Series 2007-1 Supplement to be duly executed by their respective officers as
of
the day and year first above written.
|
CHARMING
SHOPPES RECEIVABLES CORP.,
|
|
Seller
|
|
By:______________________________________
|
|
Name:
|
|
Title:
|
|
SPIRIT
OF AMERICA, INC.
Servicer
|
|
By:
______________________________________
|
|
Name:
|
|
Title:
|
|
U.S.
BANK NATIONAL ASSOCIATION,
Trustee
|
|
By:
______________________________________
|
|
Name:
|
|
Title:
|
S-1
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]1
[RESTRICTED
BOOK-ENTRY CERTIFICATE]2
FORM
OF CLASS A-1 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN
SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN
BE TRANSFERRED TO A PERSON DESIGNATED BY THE TRUST.
A-1
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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED
A-2
CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE SERIES 2007-1
SUPPLEMENT.]3
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(C) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE).]4
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH IN SECTION 16(C)(I) OF THE SERIES 2007-1 SUPPLEMENT, THEN THE TRUSTEE
SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND REQUIRE
THAT
THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED BY THE
TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
A-3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS A-1
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class A-1
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class M Certificates, the Class B
Certificates, the Class C Certificates and Class D Certificates and the
other assets and interests constituting the Trust pursuant to a Second Amended
and Restated Pooling and Servicing Agreement dated as of November 25, 1997,
as
amended on July 22, 1999, May 8, 2001, August 5, 2004, March 18, 2005 and
October 17, 2007 as supplemented by, among others, the Series 2007-1 Supplement
dated as of October 17, 2007 (as amended, the “Series 2007-1 Supplement”) (as
further amended or otherwise modified from time to time, the “Pooling and
Servicing Agreement”), by and among Charming Shoppes Receivables Corp., as
Seller, Spirit of America, Inc., as Servicer, and U.S. Bank National Association
(as successor to Wachovia Bank, National Association), as Trustee (the
“Trustee”). The aggregate principal amount of all outstanding Class
A-1 Certificates shall be as indicated in the books and records of the Trustee
and shall not exceed
[ ]
Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates (of which this certificate
is one) and the Class A-2 Certificates; (ii) the Class M Certificates, comprised
of the Class M-1 Certificates and the Class M-2 Certificates, which are
subordinated to the Class A Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement;
(iii) the Class B Certificates, comprised of the Class B-1
Certificates and the Class B-2 Certificates, which are subordinated to the
Class
A Certificates and the Class M Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (iv) the Class
C
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates and the Class B
A-4
Certificates
in certain rights of payment as described herein and in the Pooling and
Servicing Agreement; (v) the Class D Certificates, comprised of the Class D-1
Certificates and Class D-2 Certificates, which are subordinated to the Class
A
Certificates, the Class M Certificates, the Class B Certificates and the
Class C Certificates in certain rights of payment as described herein and
in the Pooling and Servicing Agreement.
The
Seller has structured the Pooling and Servicing Agreement and the Class A-1
Certificates with the intention that the Class A-1 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class A-1
Certificateholder (or Certificate Owner with respect to a Class A-1 Certificate
(a “Class A-1 Certificate Owner”)) by acceptance of its Class A-1 Certificate
(or in the case of a Class A-1 Certificate Owner, by virtue of such Class
A-1 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class A-1
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class A-1 Certificateholder
agrees that it will cause any Class A-1 Certificate Owner acquiring an interest
in a Class A-1 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class A-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class A-1
Certificateholder by virtue of the acceptance hereof assents and by which the
Class A-1 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class A-1 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1 Class A-1 (the “Class A-1 Certificates”) each
of which represents an Undivided Interest in the Trust, including the right
to
receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class A-1 Certificateholders. The
aggregate interest represented by the Class A-1 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class A Investor Interest allocated to the Class A-1 certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may be
exchanged by the Seller pursuant to the Pooling and Servicing Agreement
for
A-5
a
newly
issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
This
Class A-1 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class A-1
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class A-1 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class A-1 Certificate shall be registered in the Certificate
Register upon surrender of this Class A-1 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class A-1
Certificateholder or such Class A-1 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class A-1 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-1 Certificates are exchangeable for
new
Class A-1 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class A-1 Certificateholder surrendering such Class A-1
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
A-1
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class A-1 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
A-6
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class A-1
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-1 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
A-7
EXHIBIT
A-2
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]1
[RESTRICTED
BOOK-ENTRY CERTIFICATE]2
FORM
OF CLASS A-2 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE
1
ACQUISITION
OF THIS CERTIFICATE OR SUCH INTEREST IN SUCH CERTIFICATE VOID AND REQUIRE THAT
THIS CERTIFICATE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED
BY THE TRUST.
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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
2
HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS
OF
THE SERIES 2007-1 SUPPLEMENT.]3
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(C) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE).]4
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH IN SECTION 16(C)(I) OF THE SERIES 2007-1 SUPPLEMENT, THEN THE TRUSTEE
SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND REQUIRE
THAT
THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED BY THE
TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS A-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class A-2
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class M Certificates, the Class B
Certificates, the Class C Certificates and Class D Certificates and the
other assets and interests constituting the Trust pursuant to a Second Amended
and Restated Pooling and Servicing Agreement dated as of November 25, 1997,
as
amended on July 22, 1999, May 8, 2001, August 5, 2004, March 18, 2005 and
October 17, 2007 as supplemented by, among others, the Series 2007-1 Supplement
dated as of October 17, 2007 (as amended, the “Series 2007-1 Supplement”) (as
further amended or otherwise modified from time to time, the “Pooling and
Servicing Agreement”), by and among Charming Shoppes Receivables Corp., as
Seller, Spirit of America, Inc., as Servicer, and U.S. Bank National Association
(as successor to Wachovia Bank, National Association), as Trustee (the
“Trustee”). The aggregate principal amount of all outstanding Class
A-2 Certificates shall be as indicated in the books and records of the Trustee
and shall not exceed
[ ]
Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates (of which this certificate is one); (ii) the Class M Certificates,
comprised of the Class M-1 Certificates and the Class M-2 Certificates, which
are subordinated to the Class A Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement;
(iii) the Class B Certificates, comprised of the Class B-1
Certificates and the Class B-2 Certificates, which are subordinated to the
Class
A Certificates and the Class M Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (iv) the Class
C
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates and the Class B Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (v) the Class
D
Certificates, comprised of the Class D-1 Certificates and Class D-2
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates, the Class B Certificates and the Class C Certificates in
certain rights of payment as described herein and in the Pooling and Servicing
Agreement.
4
The
Seller has structured the Pooling and Servicing Agreement and the Class A-2
Certificates with the intention that the Class A-2 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class A-2
Certificateholder (or Certificate Owner with respect to a Class A-2 Certificate
(a “Class A-2 Certificate Owner”)) by acceptance of its Class A-2 Certificate
(or in the case of a Class A-2 Certificate Owner, by virtue of such Class
A-2 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class A-2
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class A Certificateholder
agrees that it will cause any Class A-2 Certificate Owner acquiring an interest
in a Class A-2 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class A-2 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class A-2
Certificateholder by virtue of the acceptance hereof assents and by which the
Class A-2 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class A-2 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1, Class A-2 (the “Class A-2 Certificates”)
each of which represents an Undivided Interest in the Trust, including the
right
to receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class A-2 Certificateholders. The
aggregate interest represented by the Class A-2 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class A Investor Interest allocated to the Class A-2 Certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may be
exchanged by the Seller pursuant to the Pooling and Servicing Agreement for
a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
5
This
Class A-2 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class A-2
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class A-2 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class A-2 Certificate shall be registered in the Certificate
Register upon surrender of this Class A-2 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class A-2
Certificateholder or such Class A-2 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class A-2 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class A-2 Certificates are exchangeable for
new
Class A-2 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class A-2 Certificateholder surrendering such Class A-2
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
A-2
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class A-2 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
6
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class A-2
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-2 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
7
EXHIBIT
M-1
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]1
[RESTRICTED
BOOK-ENTRY CERTIFICATE]2
FORM
OF CLASS M-1 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN
SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN
BE TRANSFERRED TO A PERSON DESIGNATED BY THE TRUST.
M-1
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 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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE SERIES 2007-1 SUPPLEMENT.]3
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(C) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE).]4
M-2
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH HEREIN IN SECTION 16(C)(I) OF THE SERIES 2007-1 SUPPLEMENT, THEN
THE
TRUSTEE SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND
REQUIRE THAT THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED
BY
THE TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
M-3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS M-1
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class M-1
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class B Certificates, the Class C
Certificates and Class D Certificates and the other assets and interests
constituting the Trust pursuant to a Second Amended and Restated Pooling and
Servicing Agreement dated as of November 25, 1997, as amended on July 22, 1999,
May 8, 2001, August 5, 2004, March 18, 2005 and October 17, 2007 as supplemented
by, among others, the Series 2007-1 Supplement dated as of October 17, 2007
(as
amended, the “Series 2007-1 Supplement”) (as further amended or otherwise
modified from time to time, the “Pooling and Servicing Agreement”), by and among
Charming Shoppes Receivables Corp., as Seller, Spirit of America, Inc., as
Servicer, and U.S. Bank National Association (as successor to Wachovia Bank,
National Association), as Trustee (the “Trustee”). The aggregate
principal amount of all outstanding Class M-1 Certificates shall be as indicated
in the books and records of the Trustee and shall not exceed
[ ]
Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates (of which this certificate is one) and the Class M-2 Certificates,
which are subordinated to the Class A Certificates in certain rights of payment
as described herein and in the Pooling and Servicing Agreement;
(iii) the Class B Certificates, comprised of the Class B-1
Certificates and the Class B-2 Certificates, which are subordinated to the
Class
A Certificates and the Class M Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (iv) the Class
C
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates and the Class B Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (v) the Class
D
Certificates, comprised of the Class D-1 Certificates and Class D-2
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates, the Class B Certificates and the Class C Certificates in
certain rights of payment as described herein and in the Pooling and Servicing
Agreement.
M-4
The
Seller has structured the Pooling and Servicing Agreement and the Class M-1
Certificates with the intention that the Class M-1 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class M-1
Certificateholder (or Certificate Owner with respect to a Class M-1 Certificate
(a “Class M-1 Certificate Owner”)) by acceptance of its Class M-1 Certificate
(or in the case of a Class M-1 Certificate Owner, by virtue of such Class
M-1 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class M-1
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class M-1 Certificateholder
agrees that it will cause any Class M-1 Certificate Owner acquiring an interest
in a Class M-1 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class M-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class M-1
Certificateholder by virtue of the acceptance hereof assents and by which the
Class M-1 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class M-1 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1, Class M-1 (the “Class M-1 Certificates”),
each of which represents an Undivided Interest in the Trust, including the
right
to receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class M-1 Certificateholders. The
aggregate interest represented by the Class M-1 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class M Investor Interest allocated to the Class M-1 Certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may
be exchanged by the Seller pursuant to the Pooling and Servicing Agreement
for a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
M-5
This
Class M-1 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class M-1
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class M-1 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class M-1 Certificate shall be registered in the Certificate
Register upon surrender of this Class M-1 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class M-1
Certificateholder or such Class M-1 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class M-1 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class M-1 Certificates are exchangeable for
new
Class M-1 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class M-1 Certificateholder surrendering such Class M-1
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
M-1
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class M-1 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
M-6
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class M-1
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class M-1 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
M-7
EXHIBIT
M-2
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]5
[RESTRICTED
BOOK-ENTRY CERTIFICATE]6
FORM
OF CLASS M-2 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN
SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN
BE TRANSFERRED TO A PERSON DESIGNATED BY THE TRUST.
1
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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE SERIES 2007-1 SUPPLEMENT.]7
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(c) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE).]8
2
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH IN SECTION 16(c)(i) OF THE SERIES 2007-1 SUPPLEMENT, THEN THE TRUSTEE
SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND REQUIRE
THAT
THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED BY THE
TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS M-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class M-2
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class B Certificates, the Class C
Certificates and Class D Certificates and the other assets and interests
constituting the Trust pursuant to a Second Amended and Restated Pooling and
Servicing Agreement dated as of November 25, 1997, as amended on July 22, 1999,
May 8, 2001, August 5, 2004, March 18, 2005 and October 17, 2007 as supplemented
by, among others, the Series 2007-1 Supplement dated as of October 17, 2007
(as
amended, the “Series 2007-1 Supplement”) (as further amended or otherwise
modified from time to time, the “Pooling and Servicing Agreement”), by and among
Charming Shoppes Receivables Corp., as Seller, Spirit of America, Inc., as
Servicer, and U.S. Bank National Association (as successor to Wachovia Bank,
National Association), as Trustee (the “Trustee”). The aggregate
principal amount of all outstanding Class M-2 Certificates shall be as indicated
in the books and records of the Trustee and shall not exceed
[ ]
Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and the Class M-2 Certificates (of which this certificate is one),
which are subordinated to the Class A Certificates in certain rights of payment
as described herein and in the Pooling and Servicing Agreement;
(iii) the Class B Certificates, comprised of the Class B-1
Certificates and the Class B-2 Certificates, which are subordinated to the
Class
A Certificates and the Class M Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (iv) the Class
C
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates and the Class B Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement; (v) the Class
D
Certificates, comprised of the Class D-1 Certificates and Class D-2
Certificates, which are subordinated to the Class A Certificates, the Class
M
Certificates, the Class B Certificates and the Class C Certificates in
certain rights of payment as described herein and in the Pooling and Servicing
Agreement.
The
Seller has structured the Pooling and Servicing Agreement and the Class M-2
Certificates with the intention that the Class M-2 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class M-2
Certificateholder (or Certificate Owner with respect to a Class M-2 Certificate
(a “Class M-2 Certificate Owner”)) by acceptance of its Class M-2 Certificate
(or in the case of a Class M-2 Certificate Owner, by virtue of such Class
M-2 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class M-2
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class M-2 Certificateholder
agrees that it will cause any Class M-2 Certificate Owner acquiring an interest
in a Class M-2 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class M-2 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class M-2
Certificateholder by virtue of the acceptance hereof assents and by which the
Class M-2 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class M-2 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1 Class M-2 (the “Class M-2 Certificates”),
each of which represents an Undivided Interest in the Trust, including the
right
to receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class M-2 Certificateholders. The
aggregate interest represented by the Class M-2 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class M Investor Interest allocated to the Class M-2 Certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may
be exchanged by the Seller pursuant to the Pooling and Servicing Agreement
for a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
This
Class M-2 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class M-2
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class M-2 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class M-2 Certificate shall be registered in the Certificate
Register upon surrender of this Class M-2 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class M-2
Certificateholder or such Class M-2 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class M-2 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class M-2 Certificates are exchangeable for
new
Class M-2 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class M-2 Certificateholder surrendering such Class M-2
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
M-2
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class M-2 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
4
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class M-2
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class M-2 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
5
EXHIBIT
B-1
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]9
[RESTRICTED
BOOK-ENTRY CERTIFICATE]10
FORM
OF CLASS B-1 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN
SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN
BE TRANSFERRED TO A PERSON DESIGNATED BY THE TRUST.
B-1
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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE SERIES 2007-1 SUPPLEMENT.]11
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(c) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE.)]12
B-2
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH IN SECTION 16(c)(i) OF THE SERIES 2007-1 SUPPLEMENT, THEN THE TRUSTEE
SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND REQUIRE
THAT
THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED BY THE
TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
B-3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS B-1
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class B-1
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class C Certificates and Class D
Certificates and the other assets and interests constituting the Trust pursuant
to a Second Amended and Restated Pooling and Servicing Agreement dated as of
November 25, 1997, as amended on July 22, 1999, May 8, 2001, August 5,
2004, March 18, 2005 and October 17, 2007 as supplemented by, among others,
the
Series 2007-1 Supplement dated as of October 17, 2007 (as amended, the “Series
2007-1 Supplement”) (as further amended or otherwise modified from time to time,
the “Pooling and Servicing Agreement”), by and among Charming Shoppes
Receivables Corp., as Seller, Spirit of America, Inc., as Servicer, and U.S.
Bank National Association (as successor to Wachovia Bank, National Association),
as Trustee (the “Trustee”). The aggregate principal amount of all
outstanding Class B-1 Certificates shall be as indicated in the books and
records of the Trustee and shall not exceed
[ ]
thousand Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and Class M-2 Certificates which are subordinated to the Class
A
Certificates in certain rights of payment as described herein and in the Pooling
and Servicing Agreement; (iii) the Class B Certificates,
comprised of the Class B-1 Certificates (of which this certificate is one)
and
the Class B-2 Certificates, which are subordinated to the Class A Certificates
and the Class M Certificates in certain rights of payment as described herein
and in the Pooling and Servicing Agreement; (iv) the Class C Certificates,
which
are subordinated to the Class A Certificates, the Class M Certificates and
the
Class B Certificates in certain rights of payment as described herein and
in the Pooling and Servicing Agreement; (v) the Class D Certificates, comprised
of the Class D-1 Certificates and Class D-2 Certificates, which are subordinated
to the Class A Certificates, the Class M Certificates, the Class B
Certificates and the Class C Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement.
B-4
The
Seller has structured the Pooling and Servicing Agreement and the Class B-1
Certificates with the intention that the Class B-1 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class B-1
Certificateholder (or Certificate Owner with respect to a Class B-1 Certificate
(a “Class B-1 Certificate Owner”)) by acceptance of its Class B-1 Certificate
(or in the case of a Class B-1 Certificate Owner, by virtue of such Class
B-1 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class B-1
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class B-1 Certificateholder
agrees that it will cause any Class B-1 Certificate Owner acquiring an interest
in a Class B-1 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class B-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class B-1
Certificateholder by virtue of the acceptance hereof assents and by which the
Class B-1 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class B-1 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1 Class B-1 (the “Class B-1 Certificates”),
each of which represents an Undivided Interest in the Trust, including the
right
to receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class B-1 Certificateholders. The
aggregate interest represented by the Class B-1 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class B Investor Interest allocated to the Class B-1 Certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may
be exchanged by the Seller pursuant to the Pooling and Servicing Agreement
for a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
B-5
This
Class B-1 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class B-1
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class B-1 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class B-1 Certificate shall be registered in the Certificate
Register upon surrender of this Class B-1 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class B-1
Certificateholder or such Class B-1 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class B-1 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class B-1 Certificates are exchangeable for
new
Class B-1 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class B-1 Certificateholder surrendering such Class B-1
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
B-1
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class B-1 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
B-6
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class B-1
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-1 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
B-7
EXHIBIT
B-2
[REGULATION
S TEMPORARY BOOK-ENTRY CERTIFICATE]13
[RESTRICTED
BOOK-ENTRY CERTIFICATE]14
FORM
OF CLASS B-2 CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED INSTITUTIONAL
BUYER”) THAT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS
SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT (AS DEFINED HEREIN), (2) TO A NON
U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT IN A PRINCIPAL AMOUNT
OF
NOT LESS THAN $100,000, SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS SPECIFIED IN THE SERIES 2007-1 SUPPLEMENT OR (3) TO THE SELLER AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF A
BENEFICIAL INTEREST IN THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE, AND EACH
PURCHASER OF A DEFINITIVE CERTIFICATE WILL MAKE, THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN SECTION 16 OF THE SERIES 2007-1 SUPPLEMENT. ANY TRANSFER
IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID
AB
INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE,
NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE TRUST, THE TRUSTEE
OR
ANY INTERMEDIARY. IF AT ANY TIME THE TRUST DETERMINES OR IS NOTIFIED
THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH CERTIFICATE OR DEFINITIVE
CERTIFICATE, AS APPLICABLE, WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS OR AGREEMENTS SET FORTH IN THE SERIES 2007-1 SUPPLEMENT, THE
TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS CERTIFICATE OR SUCH INTEREST IN
SUCH CERTIFICATE VOID AND REQUIRE THAT THIS CERTIFICATE OR SUCH INTEREST HEREIN
BE TRANSFERRED TO A PERSON DESIGNATED BY THE TRUST.
I-1
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.
[THIS
GLOBAL CERTIFICATE IS A TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF REGULATION
S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER
THE
SERIES 2007-1 SUPPLEMENT. NO BENEFICIAL OWNERS OF THIS TEMPORARY
GLOBAL CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE SERIES 2007-1 SUPPLEMENT.]15
[EACH
PURCHASER OF THIS CERTIFICATE WILL BE DEEMED TO HAVE MADE THE APPLICABLE
REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTION 16(c) OF THE SERIES 2007-1
SUPPLEMENT. ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S BOOK
ENTRY CERTIFICATE ONLY UPON RECEIPT BY THE CERTIFICATE REGISTRAR OF (A) A
TRANSFER CERTIFICATE FROM THE TRANSFEROR SUBSTANTIALLY IN THE FORM SPECIFIED
IN
THE SERIES 2007-1 SUPPLEMENT AND (B) A WRITTEN ORDER GIVEN IN ACCORDANCE WITH
THE APPLICABLE PROCEDURES UTILIZED OR IMPOSED FROM TIME TO TIME BY DTC, THE
EUROCLEAR SYSTEM AND/OR CLEARSTREAM BANKING (IN THE CASE OF A REGULATION S
BOOK
ENTRY CERTIFICATE.)]16
I-2
NEITHER
THE OWNER NOR SUCH ACCOUNT WAS FORMED FOR THE PURPOSE OF ACQUIRING ANY
CERTIFICATES (UNLESS THE TRUST, IN ITS SOLE DISCRETION AND WITH THE ADVICE
OF
COUNSEL IN RESPECT OF U.S. SECURITIES LAWS, EXPRESSLY OTHERWISE PERMITS). THE
OWNER AND EACH SUCH ACCOUNT AGREES THAT IT SHALL NOT HOLD SUCH CERTIFICATES
FOR
THE BENEFIT OF ANY OTHER PERSON AND SHALL BE THE SOLE BENEFICIAL OWNER THEREOF
FOR ALL PURPOSES AND THAT IT SHALL NOT SELL PARTICIPATION INTERESTS IN THE
CERTIFICATES OR ENTER INTO ANY OTHER ARRANGEMENT PURSUANT TO WHICH ANY OTHER
PERSON SHALL BE ENTITLED TO A BENEFICIAL INTEREST IN THE DISTRIBUTIONS ON THE
CERTIFICATES. THE OWNER UNDERSTANDS AND AGREES THAT ANY PURPORTED TRANSFER
OF
THE CERTIFICATES TO AN OWNER THAT DOES NOT COMPLY WITH THE REQUIREMENTS
HEREOF SHALL BE NULL AND VOID AB INITIO. THE OWNER
UNDERSTANDS THAT IN THE EVENT THAT AT ANY TIME THE TRUSTEE HAS DETERMINED,
OR
THE TRUST NOTIFIES THE TRUSTEE THAT THE TRUST HAS DETERMINED, THAT SUCH PURCHASE
WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS OR AGREEMENTS
SET FORTH IN SECTION 16(c)(i) OF THE SERIES 2007-1 SUPPLEMENT, THEN THE TRUSTEE
SHALL CONSIDER THE ACQUISITION OF THE RELATED CERTIFICATE VOID AND REQUIRE
THAT
THE RELATED CERTIFICATE BE TRANSFERRED TO A PERSON DESIGNATED BY THE
TRUST.
Unless
this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation (“DTC”), to Charming Shoppes Receivables
Corp. or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
I-3
|
No.
__
|
Up
to
[$ ]
CUSIP
No.
[ISIN
No. _]
|
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1, CLASS B-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that CEDE & CO. (the “Class B-2
Certificateholder”) is the registered owner of the Undivided Interest in a trust
(the “Trust”), the corpus of which consists of a portfolio of receivables (the
“Receivables”) now existing or hereafter created under credit card accounts (the
“Accounts”) of Spirit of America National Bank, a national banking association
organized under the laws of the United States, all monies due or to become
due
in payment of the Receivables (including all Finance Charge Receivables), the
benefits of the subordination of the Class C Certificates and Class D
Certificates and the other assets and interests constituting the Trust pursuant
to a Second Amended and Restated Pooling and Servicing Agreement dated as of
November 25, 1997, as amended on July 22, 1999, May 8, 2001, August 5,
2004, March 18, 2005 and October 17, 2007 as supplemented by, among others,
the
Series 2007-1 Supplement dated as of October 17, 2007 (as amended, the “Series
2007-1 Supplement”) (as further amended or otherwise modified from time to time,
the “Pooling and Servicing Agreement”), by and among Charming Shoppes
Receivables Corp., as Seller, Spirit of America, Inc., as Servicer, and U.S.
Bank National Association (as successor to Wachovia Bank, National Association),
as Trustee (the “Trustee”). The aggregate principal amount of all
outstanding Class B-2 Certificates shall be as indicated in the books and
records of the Trustee and shall not exceed
[ ]
thousand Dollars (U.S.
$[ ]). To
the extent not defined herein, capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and Class M-2 Certificates, which are subordinated to the Class
A
Certificates in certain rights of payment as described herein and in the Pooling
and Servicing Agreement; (iii) the Class B Certificates,
comprised of the Class B-1 Certificates and the Class B-2 Certificates (of
which
this certificate is one), which are subordinated to the Class A Certificates
and
the Class M Certificates in certain rights of payment as described herein and
in
the Pooling and Servicing Agreement; (iv) the Class C Certificates, which are
subordinated to the Class A Certificates, the Class M Certificates and the
Class B Certificates in certain rights of payment as described herein and
in the Pooling and Servicing Agreement; (v) the Class D Certificates, comprised
of the Class D-1 Certificates and Class D-2 Certificates, which are subordinated
to the Class A Certificates, the Class M Certificates, the Class B
Certificates and the Class C Certificates in certain rights of payment as
described herein and in the Pooling and Servicing Agreement.
I-4
The
Seller has structured the Pooling and Servicing Agreement and the Class B-2
Certificates with the intention that the Class B-2 Certificates will qualify
under applicable tax law as indebtedness, and the Seller, the Holder of the
Exchangeable Seller Certificate, the Servicer and each Class B-2
Certificateholder (or Certificate Owner with respect to a Class B-2 Certificate
(a “Class B-2 Certificate Owner”)) by acceptance of its Class B-2 Certificate
(or in the case of a Class B-2 Certificate Owner, by virtue of such Class
B-2 Certificate Owner’s acquisition of a beneficial interest therein), agrees to
treat and to take no action inconsistent with the treatment of the Class B-2
Certificates (or beneficial interest therein) for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class B-2 Certificateholder
agrees that it will cause any Class B-2 Certificate Owner acquiring an interest
in a Class B-2 Certificate through it to comply with the Pooling and Servicing
Agreement as to treatment as indebtedness for certain tax purposes.
This
Class B-2 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class B-2
Certificateholder by virtue of the acceptance hereof assents and by which the
Class B-2 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Class B-2 Certificate is
one of a series of Certificates entitled Charming Shoppes Master Trust, Asset
Backed Certificates, Series 2007-1 Class B-2 (the “Class B-2 Certificates”),
each of which represents an Undivided Interest in the Trust, including the
right
to receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be deposited in the
Collection Account or paid to the Class B-2 Certificateholders. The
aggregate interest represented by the Class B-2 Certificates at any time in
the
Principal Receivables in the Trust shall not exceed an amount equal to the
portion of the Class B Investor Interest allocated to the Class B-2 Certificates
at such time. In addition to the Series 2007-1 Certificates, an
Exchangeable Seller Certificate will be reissued to the Seller pursuant to
the
Pooling and Servicing Agreement, which will represent an undivided interest
in
the Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may
be exchanged by the Seller pursuant to the Pooling and Servicing Agreement
for a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
I-5
This
Class B-2 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class B-2
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class B-2 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class B-2 Certificate shall be registered in the Certificate
Register upon surrender of this Class B-2 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class B-2
Certificateholder or such Class B-2 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class B-2 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class B-2 Certificates are exchangeable for
new
Class B-2 Certificates evidencing like aggregate Undivided Interests, as
requested by the Class B-2 Certificateholder surrendering such Class B-2
Certificates. No service charge may be imposed for any such exchange
but the Servicer or Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
B-2
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class B-2 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
I-6
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class B-2
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-2 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
I-7
EXHIBIT
C
FORM
OF CLASS C CERTIFICATE
NO.
R-1 $[ ]
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1,
CLASS
C CERTIFICATE
THIS
CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY BE SOLD ONLY PURSUANT TO
A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF
THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND
SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY
THE
TRUSTEE UPON WRITTEN REQUEST.
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).
C-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 NONEXEMPT 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 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 REGULATIONS 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.
C-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that
[ ]
(the “Class C Certificateholder”) is the registered owner of the
Undivided Interest in a trust (the “Trust”), the corpus of which consists of a
portfolio of credit card receivables (the “Receivables”) now existing or
hereafter created under credit card accounts (the “Accounts”) of Spirit of
America National Bank, a national banking association organized under the laws
of the United States, all monies due or to become due in payment of the
Receivables (including all Finance Charge Receivables), the subordination of
the
Class D-1 Certificates and the Class D-2 Certificates and the other assets
and
interests constituting the Trust pursuant to a Second Amended and Restated
Pooling and Servicing Agreement dated as of November 25, 1997, as amended on
July 22, 1999, May 8, 2001, August 5, 2004, March 18, 2005 and October
17, 2007 and as supplemented by, among others, a Series 2007-1 Supplement dated
as of October 17, 2007 (as further amended, supplemented or otherwise modified
from time to time, the “Pooling and Servicing Agreement”), by and among Charming
Shoppes Receivables Corp., as Seller, Spirit of America, Inc., as Servicer,
and
U.S. Bank, National Association (as successor to Wachovia Bank, National
Association), as Trustee (the “Trustee”). To the extent not defined
herein, capitalized terms used herein have the meanings assigned in the Pooling
and Servicing Agreement.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and the Class M-2 Certificates, which are subordinated to the
Class
A Certificates in certain rights of payment as described herein and in the
Pooling and Servicing Agreement; (iii) the Class B Certificates,
comprised of the Class B-1 Certificates and the Class B-2 Certificates, which
are subordinated to the Class A Certificates and the Class M Certificates in
certain rights of payment as described herein and in the Pooling and Servicing
Agreement; (iv) the Class C Certificates (of which this certificate is one),
which are subordinated to the Class A Certificates, the Class M Certificates
and
the Class B Certificates in certain rights of payment as described herein
and in the Pooling and Servicing Agreement; (v) the Class D Certificates,
comprised of the Class D-1 Certificates and Class D-2 Certificates, which are
subordinated to the Class A Certificates, the Class M Certificates, the
Class B Certificates and the Class C Certificates in certain rights of
payment as described herein and in the Pooling and Servicing
Agreement.
This
Class C Certificate is issued under and is subject to the terms, provisions
and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class C Certificateholder
by virtue of the acceptance hereof assents and by which the Class C
Certificateholder is bound.
C-3
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Certificate is one of a
series of Certificates entitled Class C, Asset Backed Certificates, Series
2007-1 Certificates (the “Class C Certificates”), each of which represents an
Undivided Interest in the Trust, including the right to receive the Collections
and other amounts at the times and in the amounts specified in the Pooling
and
Servicing Agreement to be deposited in the Collection Account or paid to the
Class C Certificateholders. The aggregate interest represented
by the Class C Certificates at any time in the Principal Receivables in the
Trust shall not exceed an amount equal to the Class C Investor Interest at
such
time. In addition to the Series 2007-1 Certificates, an Exchangeable
Seller Certificate will be reissued to the Seller pursuant to the Pooling and
Servicing Agreement, which will represent an undivided interest in the
Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may be
exchanged by the Seller pursuant to the Pooling and Servicing Agreement for
a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
This
Class C Certificate does not represent an obligation of, or an interest in,
the
Seller, the Originator or the Servicer, and neither the Class C Certificates
nor
the Accounts or Receivables are insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency. This Class C
Certificate is limited in right of payment to certain collections respecting
the
Receivables, all as more specifically set forth in the Pooling and Servicing
Agreement.
The
transfer of this Class C Certificate shall be registered in the Certificate
Register upon surrender of this Class C Certificate for registration of transfer
at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class C
Certificateholder or such Class C Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class C Certificates of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth and in the Class C Purchase Agreement, Class
C
Certificates are exchangeable for new Class C Certificates evidencing like
aggregate Undivided Interests, as requested by the Class C Certificateholder
surrendering such Class C Certificates. No service charge may be
imposed for any such exchange but the Servicer or Transfer Agent and Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
C-4
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
C
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class C Certificate shall not be entitled
to any benefit under the Pooling and Servicing Agreement, or be valid for any
purpose.
C-5
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class C
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class C Certificates referred to in the within-mentioned Pooling
and
Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
C-6
EXHIBIT
D-1
FORM
OF CLASS ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇.
▇-▇ $[ ]
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1,
CLASS
D-1 CERTIFICATE
THIS
CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY BE SOLD ONLY PURSUANT TO
A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF
THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND
SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY
THE
TRUSTEE UPON WRITTEN REQUEST.
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).
D-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 D CERTIFICATES OR (II) 100
PRIVATE HOLDERS, OR (Y) ON OR THROUGH (I) AN “ESTABLISHED SECURITIES MARKET”
WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATIONS
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 REGULATIONS THEREUNDER,
INCLUDING A MARKET WHEREIN INTERESTS IN THE TRUST ARE REGULARLY QUOTED BY ANY
PERSON MAKING A MARKET IN SUCH INTERESTS AND A MARKET WHEREIN ANY PERSON
REGULARLY MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTEREST IN THE
TRUST AND STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS AT THE QUOTED PRICES
FOR ITSELF OR ON BEHALF OF OTHERS. ANY ATTEMPTED TRANSFER,
ASSIGNMENT, CONVEYANCE, PARTICIPATION OR SUBDIVISION IN CONTRAVENTION OF THE
PRECEDING RESTRICTIONS, AS REASONABLY DETERMINED BY THE SELLER, SHALL BE VOID
AB
INITIO AND THE PURPORTED TRANSFEROR, SELLER, OR SUBDIVIDER OF SUCH CERTIFICATE
SHALL BE CONSTRUED TO BE TREATED AS THE CERTIFICATEHOLDER OF ANY SUCH
CERTIFICATE FOR ALL PURPOSES OF THE POOLING AND SERVICING
AGREEMENT.
D-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that
[ ].
(the “Class D-1 Certificateholder”) is the registered owner of the Undivided
Interest in a trust (the “Trust”), the corpus of which consists of a portfolio
of credit card receivables (the “Receivables”) now existing or hereafter created
under credit card accounts (the “Accounts”) of Spirit of America National Bank,
a national banking association organized under the laws of the United States,
all monies due or to become due in payment of the Receivables (including all
Finance Charge Receivables), and the other assets and interests constituting
the
Trust pursuant to a Second Amended and Restated Pooling and Servicing Agreement
dated as of November 25, 1997, as amended on July 22, 1999, May 8,
2001, August 5, 2004, March 18, 2005 and October 17, 2007 and as supplemented
by, among others, the Series 2007-1 Supplement dated as of October 17, 2007
(as
further amended, supplemented or otherwise modified from time to time, the
“Pooling and Servicing Agreement”), by and among Charming Shoppes Receivables
Corp. (“CSRC”), as Seller, Spirit of America, Inc. (“SOAI”), as Servicer, and
U.S. Bank National Association (as successor to Wachovia Bank, National
Association), as Trustee (the “Trustee”). To the extent not defined
herein, capitalized terms used herein have the meanings assigned in the Pooling
and Servicing Agreement.
The
initial principal balance of this D-1 Certificate may be increased or decreased
according to the terms of the Pooling and Servicing Agreement and the
Certificate Purchase Agreement, dated as of October [_], 2007, among CSRC,
SOAI,
the Trustee and the Class D-1 Certificateholder described therein.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and the Class M-2 Certificates, which are subordinated to the
Class
A Certificates in certain rights of payment as described herein and in the
Pooling and Servicing Agreement; (iii) the Class B Certificates, comprised
of the Class B-1 Certificates and the Class B-2 Certificates, which are
subordinated to the Class A Certificates and the Class M Certificates in certain
rights of payment as described herein and in the Pooling and Servicing
Agreement; (iv) the Class C Certificates, which are subordinated to the Class
A
Certificates, the Class M Certificates and the Class B Certificates in
certain rights of payment as described herein and in the Pooling and Servicing
Agreement; (v) the Class D Certificates, comprised of the Class D-1 Certificates
and Class D-2 Certificates (of which this certificate is one), which are
subordinated to the Class A Certificates, the Class M Certificates, the
Class B Certificates and the Class C Certificates in certain rights of
payment as described herein and in the Pooling and Servicing Agreement as
described herein and in the Pooling and Servicing Agreement.
D-3
This
Class D-1 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class D-1
Certificateholder by virtue of the acceptance hereof assents and by which the
Class D-1 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Certificate is one of a
series of Certificates entitled Charming Shoppes Master Trust, Asset Backed
Certificates, Series 2007-1, Class D-1 Certificates (the “Class D-1
Certificates”), each of which represents an Undivided Interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Pooling and Servicing Agreement to be
deposited in the Collection Account or paid to the Class D-1
Certificateholders. The aggregate interest represented by the Class
D-1 Certificates at any time in the Principal Receivables in the Trust shall
not
exceed an amount equal to the Class D-1 Investor Interest at such
time. In addition to the Series 2007-1 Certificates, an Exchangeable
Seller Certificate will be reissued to the Seller pursuant to the Pooling and
Servicing Agreement, which will represent an undivided interest in the
Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may be
exchanged by the Seller pursuant to the Pooling and Servicing Agreement for
a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
This
Class D-1 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class D-1
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class D-1 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class D-1 Certificate shall be registered in the Certificate
Register upon surrender of this Class D-1 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class D-1
Certificateholder or such Class D-1 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class D-1 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
D-4
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth and in the Class D-1 Purchase Agreement, Class
D-1
Certificates are exchangeable for new Class D-1 Certificates evidencing like
aggregate Undivided Interests, as requested by the Class D-1 Certificateholder
surrendering such Class D-1 Certificates. No service charge may be
imposed for any such exchange but the Servicer or Transfer Agent and Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
D-1
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class D-1 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
D-5
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class D-1
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class D-1 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
D-6
EXHIBIT
D-2
FORM
OF CLASS ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇.
▇-▇ $[ ]
CHARMING
SHOPPES MASTER TRUST
ASSET
BACKED CERTIFICATE, SERIES 2007-1,
CLASS
D-2 CERTIFICATE
THIS
CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY BE SOLD ONLY PURSUANT TO
A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF
THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND
SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY
THE
TRUSTEE UPON WRITTEN REQUEST.
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).
D-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 D-2 CERTIFICATES OR (II)
100
PRIVATE HOLDERS, OR (Y) ON OR THROUGH (I) AN “ESTABLISHED SECURITIES MARKET”
WITHIN THE MEANING OF SECTION 7704(b)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND ANY PROPOSED, TEMPORARY OR FINAL TREASURY REGULATIONS
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 REGULATIONS THEREUNDER,
INCLUDING A MARKET WHEREIN INTERESTS IN THE TRUST ARE REGULARLY QUOTED BY ANY
PERSON MAKING A MARKET IN SUCH INTERESTS AND A MARKET WHEREIN ANY PERSON
REGULARLY MAKES AVAILABLE BID OR OFFER QUOTES WITH RESPECT TO INTEREST IN THE
TRUST AND STANDS READY TO EFFECT BUY OR SELL TRANSACTIONS AT THE QUOTED PRICES
FOR ITSELF OR ON BEHALF OF OTHERS. ANY ATTEMPTED TRANSFER,
ASSIGNMENT, CONVEYANCE, PARTICIPATION OR SUBDIVISION IN CONTRAVENTION OF THE
PRECEDING RESTRICTIONS, AS REASONABLY DETERMINED BY THE SELLER, SHALL BE VOID
AB
INITIO AND THE PURPORTED TRANSFEROR, SELLER, OR SUBDIVIDER OF SUCH CERTIFICATE
SHALL BE CONSTRUED TO BE TREATED AS THE CERTIFICATEHOLDER OF ANY SUCH
CERTIFICATE FOR ALL PURPOSES OF THE POOLING AND SERVICING
AGREEMENT.
D-2
Evidencing
an Undivided Interest in a trust, the corpus of which consists of a portfolio
of
credit card receivables acquired by Charming Shoppes Receivables Corp. and
other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not
an
interest in or obligation of,
Charming
Shoppes Receivables Corp., Spirit of America National Bank, Spirit of America,
Inc.,
Charming
Shoppes, Inc. or any Affiliate thereof.)
This
certifies that
[ ]
(the “Class D-2 Certificateholder”) is the registered owner of the Undivided
Interest in a trust (the “Trust”), the corpus of which consists of a portfolio
of credit card receivables (the “Receivables”) now existing or hereafter created
under credit card accounts (the “Accounts”) of Spirit of America National Bank,
a national banking association organized under the laws of the United States,
all monies due or to become due in payment of the Receivables (including all
Finance Charge Receivables), and the other assets and interests constituting
the
Trust pursuant to a Second Amended and Restated Pooling and Servicing Agreement
dated as of November 25, 1997, as amended on July 22, 1999, May 8,
2001, August 5, 2004, March 18, 2005 and October 17, 2007 and as supplemented
by, among others, the Series 2007-1 Supplement dated as of October 17, 2007
(as
further amended, supplemented or otherwise modified from time to time, the
“Pooling and Servicing Agreement”), by and among Charming Shoppes Receivables
Corp. (“CSRC”), as Seller, Spirit of America, Inc. (“SOAI”), as Servicer, and
U.S. Bank National Association (as successor to Wachovia Bank, National
Association), as Trustee (the “Trustee”). To the extent not defined
herein, capitalized terms used herein have the meanings assigned in the Pooling
and Servicing Agreement.
The
initial principal balance of this D-2 Certificate may be increased or decreased
according to the terms of the Pooling and Servicing Agreement and the
Certificate Purchase Agreement, dated as of October 17, 2007, among CSRC, SOAI,
the Trustee and the Class D-2 Certificateholder described therein.
The
Series 2007-1 Certificates are issued in five classes: (i) the Class A
Certificates, comprised of the Class A-1 Certificates and the Class A-2
Certificates; (ii) the Class M Certificates, comprised of the Class M-1
Certificates and the Class M-2 Certificates, which are subordinated to the
Class
A Certificates in certain rights of payment as described herein and in the
Pooling and Servicing Agreement; (iii) the Class B Certificates, comprised
of the Class B-1 Certificates and the Class B-2 Certificates, which are
subordinated to the Class A Certificates and the Class M Certificates in certain
rights of payment as described herein and in the Pooling and Servicing
Agreement; (iv) the Class C Certificates, which are subordinated to the Class
A
Certificates, the Class M Certificates and the Class B Certificates in
certain rights of payment as described herein, and in the Pooling and Servicing
Agreement; (v) the Class D Certificates, comprised of the D-1 Certificates
and
the Class D-2 Certificates, which are subordinated to the Class A Certificates,
the Class M Certificates, the Class B Certificates and the Class C
Certificates in certain rights of payment as described herein, as described
herein and in the Pooling and Servicing Agreement.
D-3
This
Class D-2 Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class D-2
Certificateholder by virtue of the acceptance hereof assents and by which the
Class D-2 Certificateholder is bound.
The
Receivables consist of Principal Receivables which arise from the purchase
of
goods and services and of Finance Charge Receivables which arise generally
from
periodic rate finance charges and other fees and charges, as more fully
specified in the Pooling and Servicing Agreement. The Trust corpus
consists of the Receivables now existing in the Accounts or hereafter created
in
the Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all proceeds of the Receivables and Recoveries
and Insurance Proceeds relating thereto, and such funds as from time to time
are
deposited in the Collection Account. This Certificate is one of a
series of Certificates entitled Charming Shoppes Master Trust, Asset Backed
Certificates, Series 2007-1, Class D-2 Certificates (the “Class D-2
Certificates”), each of which represents an Undivided Interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Pooling and Servicing Agreement to be
deposited in the Collection Account or paid to the Class D-2
Certificateholders. The aggregate interest represented by the Class
D-2 Certificates at any time in the Principal Receivables in the Trust shall
not
exceed an amount equal to the Class D-2 Investor Interest at such
time. In addition to the Series 2007-1 Certificates, an Exchangeable
Seller Certificate will be reissued to the Seller pursuant to the Pooling and
Servicing Agreement, which will represent an undivided interest in the
Trust. The Exchangeable Seller Certificate will represent the
interest in the Principal Receivables not represented by all of the Series
of
Investor Certificates issued by the Trust or Series of Receivables Purchase
Interests sold by the Trust. The Exchangeable Seller Certificate may be
exchanged by the Seller pursuant to the Pooling and Servicing Agreement for
a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
This
Class D-2 Certificate does not represent an obligation of, or an interest in,
the Seller, the Originator or the Servicer, and neither the Class D-2
Certificates nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental
agency. This Class D-2 Certificate is limited in right of payment to
certain collections respecting the Receivables, all as more specifically set
forth in the Pooling and Servicing Agreement.
The
transfer of this Class D-2 Certificate shall be registered in the Certificate
Register upon surrender of this Class D-2 Certificate for registration of
transfer at any office or agency maintained by the Transfer Agent and Registrar
accompanied by a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the Class D-2
Certificateholder or such Class D-2 Certificateholder’s attorney-in-fact duly
authorized in writing, and thereupon one or more new Class D-2 Certificates
of
authorized denominations and for the same aggregate Undivided Interests will
be
issued to the designated transferee or transferees.
D-4
As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth and the Class D-2 Certificate Purchase Agreement,
Class D-2 Certificates are exchangeable for new Class D-2 Certificates
evidencing like aggregate Undivided Interests, as requested by the Class D-2
Certificateholder surrendering such Class D-2 Certificates. No
service charge may be imposed for any such exchange but the Servicer or Transfer
Agent and Registrar may require payment of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in connection
therewith.
The
Servicer, the Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the person in whose name this Class
D-2
Certificate is registered as the owner hereof for all purposes, and neither
the
Servicer, the Trustee, the Paying Agent, the Transfer Agent and Registrar,
nor
any agent of any of them or of any such agent shall be affected by notice to
the
contrary except in certain circumstances described in the Pooling and Servicing
Agreement.
Unless
the certificate of authentication hereon has been executed by or on behalf
of
the Trustee, by manual signature, this Class D-2 Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
D-5
IN
WITNESS WHEREOF, Charming Shoppes Receivables Corp. has caused this Class D-2
Certificate to be duly executed under its official seal.
|
CHARMING
SHOPPES RECEIVABLES CORP.
|
|
By:___________________________________________
|
|
Authorized
Officer
|
|
Attested
to:
|
|
By:___________________________
|
|
Assistant
Secretary
|
|
Date: __________,
2007
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class D-2 Certificates referred to in the within-mentioned Pooling
and Servicing Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
Trustee
|
|
By:______________________________________
Authorized
Officer
|
D-6
EXHIBIT
E
E-1
EXHIBIT
F
F-1
F-2
F-3
EXHIBIT
G-1
Form
of Class A, Class M and Class B Regulation S Book-Entry
Certificate
to
Restricted Book-Entry Certificate Transfer Certificate
(Transfer
pursuant to subsection 16(b)(ii) of the Supplement)
U.S.
Bank
National Association, as Trustee
EP-MN-WS3D
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: [ ]
Reference
is hereby made to the Series 2007-1 Supplement dated as of October
[ ], 2007 (the “Supplement”) by and between Charming Shoppes
Receivables Corp. (“Seller”), Spirit of America, Inc. (“Servicer”) and U.S. Bank
National Association (as successor to First Union National Bank) (“Trustee”) to
the Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997 by and between the Seller, the Servicer and the Trustee (as
amended, the “Agreement”). Capitalized terms used but not defined
herein are used as defined in the Supplement and if not in the Supplement then
such terms shall have the meanings assigned to them in Regulation S
(“Regulation S”) or Rule 144A (“Rule 144A”) under the United States
Securities Act of 1933, as amended (the “Securities Act”).
This
letter relates to U.S.$[·] aggregate
principal amount of [Class A-1] [Class A-2] [Class M-1] [Class M-2] [Class
B-1]
[Class B-2] Certificates which are held in the form of a Regulation S Book-Entry
Certificate (CUSIP No. [·]) with The
Depository Trust Company in the name of [name of Transferor] (the “Transferor”)
and is intended to facilitate the transfer of [Class A-1] [Class A-2] [Class
M-1] [Class M-2] [Class B-1] [Class B-2] Certificates in exchange for an
equivalent beneficial interest in a Restricted Book-Entry Certificate in the
name of [name of Transferee](the “Transferee”).
In
connection with such request, (i) the Transferor and the Transferee both hereby
certify that such transfer has been effected in accordance with the transfer
restrictions set forth in the Agreement, the Supplement and the Offering
Memorandum relating to the initial sale of the Class A Certificates, the Class
M
Certificates and the Class B Certificates, and (ii) (A) the Transferee does
hereby make the representations and warranties discussed or listed in Section
16(c) of the Supplement and further represents, warrants and agrees for the
benefit of the Seller and the Trust that statements (1) through (6) below are
all true, and (B) the Transferor does hereby certify that
it reasonably believes that the following statements (1) through (6)
concerning the Transferee are all true:
|
|
1.
|
The
Transferee is a qualified institutional buyer within the meaning
of Rule
144A under the Securities Act.
|
|
|
2.
|
The
Transferee is acquiring the [Class A-1 Certificates] [Class A-2
Certificates] [Class M-1 Certificates] [Class M-2 Certificates] [Class
B-1
Certificates] [Class B-2 Certificates] for its own account or for an
account that is a qualified institutional buyer within the meaning
of
Rule 144A under the Securities Act. The Transferee and
each such account is acquiring not less than the minimum denomination
of
the [Class A-1 Certificates] [Class A-2 Certificates] [Class
M-1 Certificates] [Class M-2 Certificates] [Class B-1 Certificates]
[Class
B-2 Certificates];
|
G-1-1
|
|
3.
|
The
Transferee (and each such account) is not formed for the purpose
of
acquiring the [Class A-1 Certificates] [Class A-2 Certificates][Class
M-1
Certificates] [Class M-2 Certificates] [Class B-1 Certificates] [Class
B-2
Certificates];
|
|
|
4.
|
The
Transferee will notify future transferees of these transfer
restrictions;
|
|
|
5.
|
The
Transferee is obtaining the [Class A-1 Certificates] [Class A-2
Certificates] [Class M-1 Certificates] [Class M-2 Certificates] [Class
B-1
Certificates] [Class B-2 Certificates] in a transaction pursuant to
Rule 144A; and
|
|
|
6.
|
The
Transferee is obtaining the [Class A-1 Certificates] [Class A-2
Certificates] [Class M-1 Certificates] [Class M-2 Certificates] [Class
B-1
Certificates] [Class B-2 Certificates] in accordance with any
applicable securities laws of any state of the United States or any
other
applicable jurisdiction.
|
[THIS
SPACE INTENTIONALLY LEFT BLANK]
G-1-2
You,
the
Seller and the Trust 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 proceedings or official inquiry with respect to
the
matters covered hereby.
|
[Name
of Transferee]
|
|
By:____________________________________________
|
|
Name:
|
|
Title:
|
|
[Name
of Transferor]
|
|
By:____________________________________________
|
|
Name:
|
|
Title:
|
Dated:
[·], [20 ·
]
G-1-3
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the
following:
|
(i)
|
0
|
Class
A-1 Regulation S Book-Entry Certificate, principal amount of $[·],
|
|
(ii)
|
0
|
Class
A-2 Regulation S Book-Entry Certificate, principal amount of $[·],
|
|
(iii)
|
0
|
Class
M-1 Regulation S Book-Entry Certificate, principal amount of $[·],
|
|
(iv)
|
0
|
Class
M-2 Regulation S Book-Entry Certificate, principal amount of $[·],
|
|
(v)
|
0
|
Class
B-1 Regulation S Book-Entry Certificate, principal amount of $[·],
or
|
|
(vi)
|
0
|
Class
B-2 Regulation S Book-Entry Certificate, principal amount of $[·].
|
G-1-4
EXHIBIT
G-2
Form
of Class A, Class M and Class B Restricted Book-Entry
Certificate
to
Regulation S Book-Entry Certificate Transfer Certificate
(Transfer
pursuant to subsection 16(b)(iii) of the Supplement)
U.S.
Bank
National Association, as Trustee
EP-MN-WS3D
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: [ ]
Reference
is hereby made to the Series 2007-1 Supplement dated as of October
[ ], 2007 (the “Supplement”) by and between Charming Shoppes
Receivables Corp. (“Seller”), Spirit of America, Inc. (“Servicer”) and U.S. Bank
National Association (as successor to First Union National Bank) (“Trustee”) to
the Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997 by and between the Seller, the Servicer and the Trustee (as
amended, the “Agreement”). Capitalized terms used but not defined
herein are used as defined in the Supplement and if not in the Supplement then
such terms shall have the meanings assigned to them in Regulation S
(“Regulation S”) or Rule 144A (“Rule 144A”) under the United States
Securities Act of 1933, as amended (the “Securities Act”).
This
letter relates to U.S.$[·] aggregate
principal amount of [Class A-1] [Class A-2] [Class M-1] [Class M-2] [Class
B-1]
[Class B-2] Certificates which are held in the form of a Restricted Book-Entry
Certificate (CUSIP No. [·]) with The
Depository Trust Company in the name of [name of Transferor] (the “Transferor”)
and is intended to facilitate the transfer of [Class A-1] [Class A-2] [Class
M-1] [Class M-2] [Class B-1] [Class B-2] Certificates in exchange for an
equivalent beneficial interest in a Regulation S Book-Entry Certificate in
the
name of [name of Transferee](the “Transferee”).
In
connection with such request the Transferee does hereby certify represent,
warrant and agree for the benefit of the Trust and the Trustee that (1) at
the
time the buy order was originated, the Transferee was outside the United States,
(2) the Transferee is not a U.S. Person, (3) the transfer from Transferor to
Transferee is being made pursuant to Rule 903 or 904 under Regulation S and
(4) the transfer is being effected in accordance with the transfer restrictions
set forth in the Agreement and the Offering Memorandum relating to the initial
sale of the Class A Certificates, the Class M Certificates and Class B
Certificates. The transferee further hereby makes the representations
and warranties discussed or listed in Section 16(c) of the
Supplement.
G-2-1
You,
the
Seller and the Trust 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 proceedings or official inquiry with respect to
the
matters covered hereby.
|
[Name
of Transferee]
|
|
By:__________________________________________
|
|
Name:
|
|
Title:
|
Dated:
[·], [20 ·
].
G-2-2
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the following
to the Transferee:
|
(i)
|
0
|
Class
A-1 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·],
|
|
(ii)
|
0
|
Class
A-2 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·],
|
|
(iii)
|
0
|
Class
M-1 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·],
|
|
(iv)
|
0
|
Class
M-2 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·],
|
|
(v)
|
0
|
Class
B-1 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·],
or
|
|
(vi)
|
0
|
Class
B-2 Rule 144A Restricted Book-Entry Certificate, principal amount
of
$[·].
|
G-2-3
EXHIBIT
H-1
Form
of
Interest Rate Swap Agreement
[Attached]
| Barclays Bank PLC |
| 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
|
DATE:
|
October 17, 2007 |
| TO: | U.S. Bank National Association, as Trustee of Charming Shoppes Master Trust |
| ATTENTION: | ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇ |
| TELEPHONE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FACSIMILE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FROM: | Barclays Bank PLC |
| SUBJECT: | Fixed Income Derivatives Confirmation |
| REFERENCE NUMBER: | 1991473B |
The
purpose of this long-form confirmation
(“Confirmation”) is to
confirm the terms and conditions of the Transaction entered into on the Trade
Date specified below (the “Transaction”) between Barclays Bank
PLC (“Party A”) and U.S. Bank National
Association, as Trustee of Charming Shoppes Master
Trust (“Party B”) created under the Pooling and Servicing
Agreement, dated as of November 25, 1997, as amended (the “Pooling and
Servicing Agreement”) among the Charming Shoppes Receivables Corp.,
Spirit of America, Inc., as servicer (in such capacity, the
“Servicer”), and U.S. Bank National Association, as trustee
(the “Trustee”), as supplemented from time to time prior to the
date hereof, including by the Series 2007-1 Supplement to the Pooling and
Servicing Agreement dated as of October 17, 2007 (the “Series
Supplement”). The Series Supplement and the Pooling and
Servicing Agreement are collectively referred to herein as the “Base
Agreement”. This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms
set forth below and replaces any previous agreement between us with respect
to
the subject matter hereof. Item 2 of this Confirmation constitutes a
“Confirmation” as referred to in the ISDA Master Agreement
(defined below); Item 3 of this Confirmation constitutes a
“Schedule” as referred to in the ISDA Master Agreement; and
Annex A hereto constitutes Paragraph 13 of a Credit Support Annex to the
Schedule.
|
1.
|
The
Confirmation set forth at Item 2 hereof shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association, Inc. (the “ISDA
Master Agreement”), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set
forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex
A
hereto (the “Credit Support Annex”) and together with
this Confirmation and the ISDA Master Agreement, the
“Agreement”). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed
by
such ISDA Master Agreement.
|
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Swap
|
|
Notional
Amount:
|
An
amount equal for each Calculation Period to (x) initially, USD
153,800,000.00 and thereafter the outstanding principal amount of
the
Class A-1 Certificates (as defined in the Series Supplement) at the
end of
the first day of such Calculation Period, minus (y) the amount or
amounts,
as applicable, set forth for such period on Schedule I attached
hereto.
|
|
Trade
Date:
|
October
10, 2007
|
|
Effective
Date:
|
October
17, 2007
|
|
Termination
Date:
|
The
earlier of (i) September 15, 2017, subject to adjustment in accordance
with the Following Business Day Convention, and (ii) the date on
which the
outstanding principal amount of the Class A-1 Certificates (as defined
in
the Series Supplement) is reduced to zero, subject to early termination
in
accordance with the terms of the Agreement. In accordance with
the Series Supplement, the Class A Expected Final Payment Date is
November
15, 2012 subject to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate:
|
5.056%
|
|
Fixed
Rate Day
Count
Fraction:
|
Actual/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Floating
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention..
|
|
Floating
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate
Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York, Philadelphia and Milford, Ohio
|
|
Business
Day
Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
Account
Details and Settlement Information:
|
|
|
Payments
to Party
A:
|
Correspondent:
BARCLAYS BANK PLC NEW YORK
FEED:
▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS
SWAPS
Beneficiary
Account: ▇▇▇-▇▇▇▇▇-▇
|
|
Payments
to Party
B:
|
U.S.
Bank National Association
ABA
Number: ▇▇▇▇▇▇▇▇▇
Account
Number: 1731-0332-2058
Reference: Charming
Shoppes/2576000052 (2007-1 Hedge)
Beneficiary
Name: US Bank Structured Fin
Attn: ▇▇▇▇▇▇
▇▇▇
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
|
|
For
the purposes of this Agreement:-
|
|
(a)
|
“Specified
Entity” will not apply to Party A or Party B for any
purpose.
|
|
(b)
|
“Specified
Transaction” will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
|
|
(i)
|
The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party
B.
|
|
|
(ii)
|
The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B; provided, however,
that notwithstanding anything to the contrary in Section
5(a)(ii), any failure by Party A to comply with or perform any obligation
to be complied with or performed by Party A under the Credit Support
Annex
shall not constitute an Event of Default under Section 5(a)(ii) unless
(A)
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days, (B) an S&P Required Ratings
Downgrade Event has occurred and been continuing for 10 or more Local
Business Days, (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days, or (D) a DBRS Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
days.
|
|
|
(iii)
|
The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for 30 or more Local Business Days, (B) an S&P
Required Ratings Downgrade Event has occurred and been continuing
for 10
or more Local Business Days, (C) a Fitch Required Ratings Downgrade
Event
has occurred and been continuing for 30 or more days, or (D) a DBRS
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more days.
|
|
|
(iv)
|
The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
|
|
|
(v)
|
The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
|
|
|
(vi)
|
The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except
that such term shall not include obligations in respect of deposits received
in
the ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent
(3%) of the Shareholders’ Equity of Party A or, if applicable, a guarantor under
an Eligible Guarantee with credit ratings at least equal to the S&P Required
Ratings Threshold, the ▇▇▇▇▇’▇ Second Trigger Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Shareholders’
Equity” means with respect to an entity, at any time, such party’s
shareholders’ equity (on a consolidated basis) determined in accordance with
generally accepted accounting principles in such party’s jurisdiction of
incorporation or organization as at the end of such party’s most recently
completed fiscal year.
|
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B; provided, however, that, for
purposes of applying Section 5(a)(vii) to Party B: (A) Section
5(a)(vii)(2) shall not apply, (B) Section 5(a)(vii)(3) shall not
apply to
any assignment, arrangement or composition that is effected by or
pursuant
to the Base Agreement, (C) Section 5(a)(vii)(4) shall not apply to
a
proceeding instituted, or a petition presented, by Party A or any
of its
Affiliates (notwithstanding anything to the contrary in this Agreement,
for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning
set
forth in Section 14 of the ISDA Master Agreement), (D) Section
5(a)(vii)(6) shall not apply to any appointment that is effected
by or
pursuant to the Base Agreement, or any appointment to which Party
B has
not yet become subject; (E) Section 5(a)(vii) (7) shall not apply;
(F)
Section 5(a)(vii)(8) shall apply only to the extent of any event
which has
an effect analogous to any of the events specified in clauses (1),
(3),
(4), (5) or (6) of Section 5(a)(vii), in each case as modified in
this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not
apply.
|
|
|
(viii)
|
The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
|
|
(d)
|
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
|
|
(i)
|
The
“Illegality” provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
|
|
|
(ii)
|
The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)”, and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
|
(iii)
|
The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that Party
A
shall not be entitled to designate an Early Termination Date by reason
of
a Tax Event upon Merger in respect of which it is the Affected
Party.
|
|
|
(iv)
|
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
|
|
(e)
|
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
|
|
(f)
|
Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
|
|
|
(i)
|
Market
Quotation will apply, provided, however, that, in the event of a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by a Reference Market-maker that
is
an Eligible Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such Reference Market-maker
to enter into a Replacement Transaction, and (3) made on the basis that Unpaid
Amounts in respect of the Terminated Transaction or group of Transactions are
to
be excluded but, without limitation, any payment or delivery that would, but
for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to
be included.
|
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
|
|
(a)
|
if,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
|
(b)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations from Approved Replacements have been communicated to Party
B
and remain capable of becoming legally binding upon acceptance by
Party B,
the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotations (for the avoidance
of
doubt, (i) a Market Quotation expressed as a negative number is lower
than
a Market Quotation expressed as a positive number and (ii) the lower
of
two Market Quotations expressed as negative numbers is the one with
the
largest absolute value); or
|
|
|
(c)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotation from
an
Approved Replacement has been communicated to Party B and remains
capable
of becoming legally binding upon acceptance by Party B, Party B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.”
|
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
|
“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted against any amount payable by Party B under
the
immediately preceding clause (I).”
|
|
(E)
|
At
any time on or before the Early Termination Date at which two or
more
Market Quotations from Approved Replacements have been communicated
to
Party B and remain capable of becoming legally binding upon acceptance
by
Party B, Party B shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, (i) a Market Quotation
expressed as a negative number is lower than a Market Quotation expressed
as a positive number and (ii) the lower of two Market Quotations
expressed
as negative numbers is the one with the largest absolute
value).
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(g)
|
“Termination
Currency” means USD.
|
|
(h)
|
Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
|
|
(i)
|
Additional
Amounts Upon Certain Partial
Terminations
|
(i) Capitalized
terms used but not otherwise defined in this Part 1(i) have the meanings
assigned thereto in the Series Supplement. In addition, the following
terms have the meanings set forth below:
|
“Available
Reserve Funds” means funds on deposit in the Hedge Reserve Account, other
than interest and other investment
income.
|
|
“Prefunding
Reduction” means a principal payment made on the Class A-1 Certificates as
a result of the release of funds from the Pre-Funding Account on
the Lane
▇▇▇▇▇▇ Portfolio Distribution Date pursuant to Section 4.19(b) of
the
Series Supplement.
|
|
“Hedge
Reserve Account” means a segregated trust account maintained by the
Trustee at the Trustee in the name of the Trustee, for the benefit
of
Party A as counterparty under each of the Interest Rate Hedge
Agreements.
|
(ii) If
the Notional Amount is reduced on any date as a result of a Prefunding
Reduction, the parties hereto shall treat the portion of such reduction (without
duplication) as terminated on such date (a “Terminated
Transaction”). Party A shall calculate the Market Quotation for the
Terminated Transaction as set forth below.
“Market
Quotation” means, with respect to a Terminated Transaction, an amount determined
on the basis of quotations from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to Party A
(expressed as a negative number) or by Party A (expressed as a positive number)
in consideration of an agreement between Party A and the quoting Reference
Market-maker to enter into such Terminated Transaction (with the same fixed
and
floating payment rates and remaining term as this Transaction) on the relevant
Payment Date. Party A will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable prior to the relevant Payment Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by
Party A. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard to
the
quotations having the highest and lowest values. If exactly three
such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, Party A
will determine the Market Quotation in good faith. Notwithstanding
the foregoing, Party A shall be the sole Reference Market-maker
unless: (a) the reduction in the aggregate Notional Amounts of the
Transactions between Party A and Party B being terminated at the same time
is
equal to or greater than $50 million, and (b) the Servicer or the Trustee
requests that quotations from Reference Market-makers other than Party A are
utilized.
If
the
amount so determined by Party A in respect of a Terminated Transaction is
positive, Party B shall owe such amount to Party A, which shall be payable
(with
interest thereon accruing from such Payment Date and calculated at the Fixed
Rate) on the next Payment Date to the extent provided in the Series
Supplement. If such amount is negative, Party A shall pay such amount
to Party B on the next Local Business Day.
(iii) The
amount payable by Party B under clause (ii) of this Part 1(i), if any, shall
be
paid from the following sources:
first,
funds available for that purpose under Section 4.11(t) of the Series
Supplement,
second,
Available Reserve Funds in the Hedge Reserve Account, and
third,
funds that would otherwise be released on such date to the holder of the
Exchangeable Seller Certificate from the Funding Period Reserve
Account.
(iv) Party
B’s obligation to deposit funds to the Hedge Reserve Account shall be limited
to
the extent that funds are available for such purpose under Section 4.11(t)
of
the Series Supplement, and failure to make such deposit due to such funds not
being available shall not constitute an Event of Default. Funds held
in the Hedge Reserve Account shall be used solely to fund Party B’s obligations
under clause (ii) of this Part 1(i) in respect of a Terminated Transaction,
and
may not be used for any other purpose.
(v) Funds
on deposit in the Hedge Reserve Account (after giving effect to any withdrawals
from the Hedge Reserve Account) shall be invested by the Trustee at the
direction of the Servicer in Permitted Investments maturing no later than the
following Distribution Date. The interest and other investment income
(net of investment expenses and losses) earned on such investments shall be
withdrawn from the Hedge Reserve Account and transferred to the holder of the
Exchangeable Seller Certificate on each Distribution Date, provided that any
other deposit to, or withdrawal from, such account required to be made on such
date has occurred.
(vi) The
Hedge Reserve Account shall be terminated following the earlier to occur of
(a)
the completion of the acquisition of the Lane ▇▇▇▇▇▇ Portfolio by the Originator
or (b) the payment in full of any amounts due under Part 1(i)
hereof.
|
Part
2.
|
Tax
Matters.
|
|
(a)
|
Tax
Representations.
|
|
|
(i)
|
Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
|
(ii)
|
Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable
Tax” in Section 14 of this Agreement, all Taxes in relation to payments
by
Party A shall be Indemnifiable Taxes unless (i) such Taxes are assessed
directly against Party B and not by deduction or withholding by Party
A or
(ii) arise as a result of a Change in Tax Law (in which case such
Tax
shall be an Indemnifiable Tax only if such Tax satisfies the definition
of
Indemnifiable Tax provided in Section 14). In relation to
payments by Party B, no Tax shall be an Indemnifiable Tax, unless
the Tax
is due to a Change in Tax Law and otherwise satisfies the definition
of
Indemnifiable Tax provided in Section
14.
|
|
Part
3.
|
Agreement
to Deliver Documents.
|
|
(a)
|
For
the purpose of Section 4(a)(i), tax forms, documents, or certificates
to
be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A and Party B
|
Any
form or document required or reasonably requested to allow the other
party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Promptly
upon reasonable demand by the other
party.
|
|
(b)
|
For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support
Document, as the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon request after becoming publicly available
|
Yes
|
|
Party
A
|
Opinions
of counsel to Party A substantially in the form of Exhibit A to this
Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
opinion of counsel to Party B reasonably satisfactory to Party
A.
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
executed copy of the Base Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
|
|
Part
4. Miscellaneous.
|
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of
this Agreement:
|
|
|
Address
for notices or communications to Party
A:
|
|
Address:
|
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
|
Facsimile:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
|
Phone:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
(For
all
purposes)
|
|
Address
for notices or communications to Party
B:
|
|
Address:
|
EP—MN—WS3D
|
|
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
|
Structured
Finance—Charming Shoppes 2007-1
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Phone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
(For
all
purposes)
|
(b)
|
Process
Agent. For the purpose of Section
13(c):
|
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices. The
provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
|
|
Party
A is a Multibranch Party and may act through its London and New York
Offices.
|
|
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is Party A; provided,
however, that if an Event of Default shall have occurred with respect
to
Party A, Party B shall have the right to appoint as Calculation Agent
a
financial institution which would qualify as a Reference Market-maker,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A.
|
|
(f)
|
Credit
Support Document.
|
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that
the law of the State of New York shall govern their rights and duties
in
whole (including any claim or controversy arising out of or relating
to
this Agreement), without regard to the conflict of law provisions
thereof
other than New York General Obligations Law Sections 5-1401 and
5-1402.
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) will
apply to each Transaction
hereunder.
|
|
(j)
|
Affiliate. “Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes of
this
Agreement, including for purposes of Section
6(b)(ii).
|
|
Part
5.
|
Other
Provisions.
|
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Base
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Base
Agreement) or to a “Section” “of this Agreement” will be construed as a
reference to a Section of the ISDA Master Agreement; each herein reference
to a
“Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
|
(b)
|
Amendments
to ISDA Master Agreement.
|
|
|
(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
|
|
|
(ii)
|
Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof: “to another account in the same legal and tax jurisdiction as the
original account”.
|
|
|
(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
|
“(g) Relationship
Between Parties.
|
|
(1)
|
Non-Reliance. It
is acting for its own account, and it has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation
to
enter into that Transaction, it being understood that information
and
explanations related to the terms and conditions of a Transaction
will not
be considered investment advice or a recommendation to enter into
that
Transaction. No communication (written or oral) received from
the other party will be deemed to be an assurance or guarantee as
to the
expected results of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(2)
|
Assessment
and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming,
and assumes, the risks of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(3)
|
Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
|
|
(4)
|
Status
of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
|
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract
participant” as defined in Section 1a(12) of the Commodity Exchange Act,
as amended.”
|
|
|
(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) by deleting the
words “to transfer” and inserting the words “to effect a Permitted
Transfer” in lieu thereof.
|
|
|
(vi)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
First
Rating Trigger Collateral.If Party A has failed to comply with or
perform any obligation to be complied with or performed by Party
A in
accordance with the Credit Support Annex and such failure has not
given
rise to an Event of Default under Section 5(a)(i) or Section 5(a)(iii),
then an Additional Termination Event shall have occurred with respect
to
Party A and Party A shall be the sole Affected Party with respect
to such
Additional Termination Event.
|
|
|
(ii)
|
Second
Rating Trigger Replacement. The occurrence of any
event described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
|
(A)
|
A
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and at least one Eligible Replacement
has made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (on the basis that
paragraphs (i) and (ii) of Part 1(f) (Payments on Early Termination)
apply) and which remains capable of becoming legally binding upon
acceptance.
|
|
|
(B)
|
An
S&P Required Ratings Downgrade Event has occurred and been continuing
for 60 or more calendar days.
|
|
|
(C)
|
A
Fitch Required Ratings Downgrade Event has occurred and been continuing
for 30 or more calendar days.
|
|
|
(D)
|
A
DBRS Required Ratings Downgrade Event has occurred and been continuing
for
30 or more calendar days.
|
|
|
(iii)
|
Amendment
of Base Agreement. If, without the prior written
consent of Party A where such consent is required under the Base
Agreement, an amendment is made to the Base Agreement which amendment
could reasonably be expected to have a material adverse effect on
the
interests of Party A (excluding, for the avoidance of doubt, any
amendment
to the Base Agreement that is entered into solely for the purpose
of
appointing a successor servicer, master servicer, securities
administrator, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(iv)
|
Termination
of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have
been paid in accordance with the terms of the Base Agreement, an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(v)
|
Securitization
Unwind. If a
Securitization Unwind (as hereinafter defined) occurs, an Additional
Termination Event shall have occurred with respect to Party B and
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding Section
6(b)(iv) of this Agreement, both Party A and Party B shall have the
right
to designate an Early Termination Date in respect of this Additional
Termination Event. The Early Termination Date in respect of
such Additional Termination Event shall be not earlier than the latest
possible date that the amount of a termination payment may be submitted
to
a party exercising a clean-up call in order to be included in the
clean-up
call price. As used herein, “Securitization
Unwind” means notice of the requisite amount of a party’s
intention to exercise its option to purchase the underlying credit
card
receivables pursuant the Base Agreement is given by the Trustee to
certificateholders or noteholders, as applicable, pursuant to the
Base
Agreement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that no Relevant
Entity has credit ratings at least equal to the Required Ratings
Threshold
of each relevant Rating Agency (such event, a “Required Ratings
Downgrade Event”), then Party A shall, as soon as reasonably
practicable and so long as a Required Ratings Downgrade Event is
in
effect, at its own expense, use commercially reasonable efforts to
procure
either (A) a Permitted Transfer or (B) an Eligible
Guarantee.
|
|
(e)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“Subject
to Section 6(b)(ii), neither Party A nor Party B is permitted to assign, novate
or transfer (whether by way of security or otherwise) as a whole or in part
any
of its rights, obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b) satisfaction
of
the Rating Agency Condition, except that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may transfer or assign this Agreement to any Person, including,
without
limitation, another of Party A’s offices, branches or affiliates (any such
Person, office, branch or affiliate, a “Transferee”) on
at least five Business Days’ prior written notice to Party B and the
Trustee; provided that, with respect to this clause (c), (A) as
of the date of such transfer the Transferee will not be required
to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments
of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement
in
respect of such Tax (B) a Termination Event or Event of Default does
not
occur under this Agreement as a result of such transfer; (C) such
notice
is accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred;
(D) Party A will be responsible for any costs or expenses incurred
in
connection with such transfer and (E) Party A obtains in respect
of such
transfer a written acknowledgement of satisfaction of the Rating
Agency
Condition (except for ▇▇▇▇▇’▇). Party B will execute such
documentation as is reasonably deemed necessary by Party A for the
effectuation of any such transfer.”
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such
transfer.
|
|
(f)
|
Non-Recourse. Party
A acknowledges and agree that, notwithstanding any provision in this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Base Agreement and that Party A will not have
any
recourse to any of the directors, officers, employees, shareholders
or
affiliates of the Party B with respect to any claims, losses, damages,
liabilities, indemnities or other obligations in connection with
any
transactions contemplated hereby. In the event that the Trust and
the
proceeds thereof should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and
the
proceeds thereof, any claims against or obligations of Party B under
the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not
revive. The Trustee shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Trust from the Trust
created pursuant to the Base Agreement. This provision will
survive the termination of this
Agreement.
|
|
(g)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such designation
or transfer.
|
|
(h)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set
off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
|
|
(i)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Rating Agencies has been provided
prior
written notice of the same and such amendment satisfies the Rating
Agency
Condition with respect to S&P, Fitch and
DBRS.
|
|
(j)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Rating
Agency notice of such event or condition; provided that failure to
provide
notice of such event or condition pursuant to this Part 5(j) shall
not
constitute an Event of Default or a Termination Event. With
respect to Party B, delivery of such notice shall not be required
unless a
Responsible Officer (as defined in the Base Agreement) has written
notice
or actual knowledge of such event or
condition.
|
|
(k)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Trust, or the trust formed pursuant to the Base Agreement,
in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy
or
similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will
preclude,
or be deemed to stop, Party A (i) from taking any action prior to
the
expiration of the aforementioned one year and one day period, or
if longer
the applicable preference period then in effect, in (A) any case
or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person
other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding. This provision will survive the termination of this
Agreement.
|
|
(l)
|
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by U.S. Bank National Association (“U.S. Bank”) not
in its individual capacity, but solely as Trustee of the Charming
Shoppes
Master Trust created pursuant to the Base Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder; (b)
U.S.
Bank has been directed pursuant to the Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of U.S.
Bank
but is made and intended for the purpose of binding only Charming
Shoppes
Master Trust; and (d) under no circumstances shall U.S. Bank in its
individual capacity be personally liable for any payments hereunder
or for
the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken under this
Agreement.
|
|
(m)
|
Severability. If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(n)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing, and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(o)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(p)
|
Regarding
Party A. Party B acknowledges and agrees that Party A,
in its capacity as swap provider, has had and will have no involvement
in
and, accordingly Party A accepts no responsibility for: (i) the
establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) the preparation of or passing on the
disclosure and other information (other than disclosure and information
furnished by Party A) contained in any offering circular for the
Certificates, the Base Agreement, or any other agreements or documents
used by Party B or any other party in connection with the marketing
and
sale of the Certificates; (vi) the ongoing operations and administration
of Party B, including the furnishing of any information to Party
B which
is not specifically required under this Agreement; or (vii) any other
aspect of Party B’s existence.
|
|
(q)
|
Rating
Agency Requirements. Notwithstanding anything to
the contrary herein, to the extent any Rating Agency does not assign
a
rating to the notes or certificates, as applicable, issued pursuant
to the
Base Agreement, references to the requirements of such Rating Agency
herein shall be ignored for purposes of this
Agreement.
|
|
(r)
|
Transfer
or Restructuring to Avoid Termination Event. Section
6(b)(ii) of the Agreement shall be amended in its entirety to read
as
follows: If either an Illegality under Section 5(b)(i)(1), a Tax
Event
occurs and there is only one Affected Party, or if a Tax Event Upon
Merger
occurs and the Burdened Party is the Affected Party, the Affected
Party
will, as a condition to its right to designate an Early Termination
Date
under Section 6(b)(iv), within 20 days after it gives notice under
Section
6(b)(i), use all reasonable efforts (which will not require such
party to
incur a loss, excluding immaterial, incidental expenses) to
(A) transfer all its rights and obligations under this
Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist
or
(B) replace the Affected Transaction(s) with one or more economically
equivalent transactions so that such Termination Event ceases to
exist.
|
|
|
If
the Affected Party is not able to cause such a transfer or restructuring
it will give notice to the other party to that effect within such
20 day
period, whereupon the other party may effect such a transfer or cause
such
a restructuring within 30 days after the notice is given under Section
6(b)(i).
|
|
|
Any
transfer by a party under this Section 6(b)(ii) will be subject to
and
conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party’s policies in effect at
such time would permit it to enter into transactions with the transferee
on the terms proposed. Any restructuring by a party under this
Section 6(b)(ii) will be subject to and conditional upon the satisfaction
of the Rating Agency Condition and the prior written consent of the
other
party, which consent shall not unreasonably be
withheld.
|
|
(s)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold, the ▇▇▇▇▇’▇ First Trigger Ratings Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a), (b),
(c) and (d) of the definition of Permitted Transfer (as determined by Party
B in
accordance with the Base Agreement) if such entity were a Transferee, as defined
in the definition of Permitted Transfer.
“DBRS”
means Dominion Bond Rating Service, or any successor thereto.
“DBRS
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “AA(low)” and a short-term
unsecured and unsubordinated debt rating from DBRS of
“R-1(middle)”.
“DBRS
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from DBRS at least equal to the DBRS Required Ratings
Threshold.
“DBRS
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “BBB”.
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations of Party A under this Agreement (or, solely
for
purposes of the definition of Eligible Replacement, all present and future
obligations of such Eligible Replacement under this Agreement or its
replacement, as applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency Condition with
respect to S&P, Fitch and DBRS, and either (A) a law firm has given a legal
opinion confirming that none of the guarantor’s payments to Party B under such
guarantee will be subject to deduction or Tax collected by withholding, or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to deduction or Tax collected by withholding, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required, or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Replacement” means an entity (A) (I) (x) which has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or (y) all
present and future obligations of which entity owing to Party B under this
Agreement (or its replacement, as applicable) are guaranteed pursuant to an
Eligible Guarantee provided by a guarantor with credit ratings from S&P at
least equal to the S&P Required Ratings Threshold, in either case if S&P
is a Rating Agency, (II) (x) which has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold or (y) all present and
future obligations of which entity owing to Party B under this Agreement (or
its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if ▇▇▇▇▇’▇ is a Rating
Agency, (III) (x) which has credit ratings from Fitch at least equal to the
applicable Fitch Approved Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Fitch at least equal to the
Fitch Approved Ratings Threshold, in either case if Fitch is a Rating Agency,
and (IV) (x) which has credit ratings from DBRS at least equal to the applicable
DBRS Approved Ratings Threshold or (y) all present and future obligations of
which entity owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee provided by a
guarantor with credit ratings from DBRS at least equal to the DBRS Approved
Ratings Threshold, in either case if DBRS is a Rating Agency, and (B) that
has
executed or agrees to execute a Regulation AB indemnification agreement, if
applicable.
|
|
“Financial
Institution” means a bank, broker/dealer, insurance company,
structured investment company or derivative product
company.
|
“Firm
Offer” means a quotation from an Eligible Replacement (i) in an
amount equal to the actual amount payable by or to Party B in consideration
of
an agreement between Party B and such Eligible Replacement to replace Party
A as
the counterparty to this Agreement by way of novation or, if such novation
is
not possible, an agreement between Party B and such Eligible Replacement to
enter into a Replacement Transaction (assuming that all Transactions hereunder
become Terminated Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to this Agreement
or
enter a Replacement Transaction that will become legally binding upon such
Eligible Replacement upon acceptance by Party B.
“Fitch”
means Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “A” and a short-term
unsecured and unsubordinated debt rating from Fitch of “F1”.
“Fitch
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Required Ratings
Threshold.
“Fitch
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “BBB-”.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A3” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-2”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody’s, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody’s of
“A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s
rights, liabilities, duties and obligations under this Agreement, with respect
to which transfer each of the following conditions is satisfied: (a)
the Transferee is an Eligible Replacement that is a recognized dealer in
interest rate swaps; (b) as of the date of such transfer the Transferee would
not be required to withhold or deduct on account of Tax from any payments under
this Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (c) an Event of Default or Termination Event would not occur as
a
result of such transfer (d) pursuant to a written instrument (the “Transfer
Agreement”); the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction; (e) such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (f) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (g) Moody’s has been given prior written notice
of such transfer and the Rating Agency Condition (other than with respect to
▇▇▇▇▇’▇) is satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
“Rating
Agencies” means, with respect to any date of determination, each
of S&P, ▇▇▇▇▇’▇, Fitch and DBRS, to the extent that each such
rating agency is then providing a rating for any of the related notes or
certificates, as applicable.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Rating Agency specified in connection
with such proposed act or omission, that the party proposing such act or failure
to act must consult with each of the specified Rating Agencies and receive
from
each such Rating Agency prior written confirmation that the proposed action
or
inaction would not cause a downgrade or withdrawal of the then-current rating
of
any Certificates or Notes.
“Relevant
Entity” means Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date, and (ii)
has terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold, the Moody’s Second Trigger Ratings Threshold, the Fitch Required
Ratings Threshold and the DBRS Required Ratings Threshold.
“S&P”
means Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating of “A-1” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating of “A+” from S&P.
“S&P
Required Ratings Downgrade Event” means that
no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, (I) if such
entity is a Financial Institution, a short-term unsecured and unsubordinated
debt rating of “A-2” from S&P, or, if such entity does not have a short-term
unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “BBB+” from S&P, or
(II) if such entity is not a Financial Institution, a short-term unsecured
and
unsubordinated debt rating of “A-1” from S&P, or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating or counterparty rating of
“A+” from S&P.
[Remainder
of this page intentionally left blank.]
The
time
of dealing will be confirmed by Party A upon written
request. Barclays is regulated by the Financial Services
Authority. Barclays is acting for its own account in respect of this
Transaction.
Please
confirm that the foregoing correctly sets forth all the terms and conditions
of
our agreement with respect to the Transaction by responding within three (3)
Business Days by promptly signing in the space provided below and both (i)
faxing the signed copy to Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global Operations, Fax
▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the
signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not
affect the validity or enforceability of the Transaction against
you. This facsimile shall be the only documentation in respect of the
Transaction and accordingly no hard copy versions of this Confirmation for
this
Transaction shall be provided unless Party B requests such a copy.
|
For
and on behalf of
BARCLAYS
BANK PLC
|
For
and on behalf of
U.S.
BANK NATIONAL ASSOCIATION, NOT
IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY
AS
TRUSTEE OF CHARMING SHOPPES
MASTER
TRUST
|
|
Name: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
Date:
|
Name: /s/
Ta_____ ▇▇▇▇▇▇-______
Title: Vice
President
Date: 10/17/07
|
Barclays
Bank PLC and its Affiliates, including Barclays Capital Inc., may share with
each other information, including non-public credit information, concerning
its
clients and prospective clients. If you do not want such information
to be shared, you must write to the Director of Compliance, Barclays Bank PLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
SCHEDULE
I
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
|
17-Oct-07
|
1-Nov-07
|
136,978,125.00
|
|
1-Nov-07
|
15-Nov-07
|
27,635,937.50
|
|
15-Nov-07
|
15-Dec-07
|
22,549,323.08
|
|
15-Dec-07
|
15-Jan-08
|
17,462,708.65
|
|
15-Jan-08
|
15-Feb-08
|
12,376,094.23
|
|
15-Feb-08
|
15-Mar-08
|
8,410,937.98
|
|
15-Mar-08
|
15-Apr-08
|
4,445,781.73
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of October 17, 2007 between
Barclays
Bank PLC (hereinafter referred to as “Party A” or
“Pledgor”)
and
U.S.
Bank
National Association, as Trustee of Charming Shoppes Master Trust
(hereinafter
referred to as “Party B” or “Secured
Party”).
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
|
|
Paragraph
13. Elections and
Variables.
|
|
(a)
|
Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
|
(A)
|
“Delivery
Amount” has the meaning specified in
Paragraph 3(a), except that:
|
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation Date”,
and
|
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall be deleted in its entirety and replaced
with the following:
|
“The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greatest of
|
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Credit Support Amount for such Valuation
Date exceeds (b) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Credit Support Amount for such Valuation
Date exceeds (b) the Fitch Value, as of such Valuation Date, of all
Posted
Credit Support held by the Secured
Party.”
|
|
|
(B)
|
“Return
Amount” has the meaning specified in Paragraph 3(b), except
that:
|
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the least of
|
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation
Date,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Moody’s
Credit Support Amount for such Valuation Date,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Value, as of such Valuation Date, of
all
Posted Credit Support held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation
Date.”
|
|
|
(C)
|
“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation
Date,
reference shall be made to the S&P Credit Support Amount, the Moody’s
Credit Support Amount, or the Fitch Credit Support Amount, in each
case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
|
(ii)
|
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral” (for the avoidance of doubt, all Eligible Collateral
to be denominated in USD):
|
Collateral
|
S&P
Approved Ratings Valuation Percentage
|
S&P
Required Ratings Valuation Percentage
|
Moody's
First Trigger Valuation Percentage
|
Moody's
Second Trigger Valuation Percentage
|
Fitch
& DBRS Valuation Percentage
|
|
(A)Cash
|
100%
|
80%
|
100%
|
100%
|
100%
|
|
(B)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.9%
|
79.1%
|
100%
|
100%
|
97.5%
|
|
(C)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not more
than
ten years
|
92.6%
|
74.1%
|
100%
|
94%
|
86.3%
|
|
(D)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
N/A
|
N/A
|
100%
|
87%
|
79%
|
Notwithstanding
the Valuation Percentages set forth in the preceding table, upon the first
Transfer of Eligible Collateral under this Annex, the Pledgor may, at the
Pledgor’s expense, agree the Valuation Percentages in relation to (B) through
(D) above with the relevant rating agency (to the extent such rating agency
is
providing a rating for the Certificates), and upon such agreement (as evidenced
in writing), such Valuation Percentages shall supersede those set forth in
the
preceding table.
|
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other Eligible
Support” for the party specified:
Such
Other Eligible Support as the Pledgor may designate; provided, at the expense
of
the Pledgor, the prior written consent of the relevant rating agency (to the
extent such rating agency is providing a rating for the Certificates) shall
have
been obtained. For the avoidance of doubt, there are no items that
qualify as Other Eligible Support as of the date of this Annex.
|
|
(iv)
|
Threshold.
|
|
|
(A)
|
“Independent
Amount” means zero with respect to Party A and Party
B.
|
|
|
(B)
|
“Moody’s
Threshold” means, with respect to Party A and any Valuation
Date, if a Moody's First Trigger Downgrade Event has occurred and
is
continuing and such Moody’s First Trigger Downgrade Event has been
continuing for at least 30 Local Business Days or since this Annex
was
executed, zero; otherwise,
infinity.
|
“S&P
Threshold” means, with respect to Party A and any Valuation Date,
if an S&P Approved Threshold Downgrade Event has occurred and is
continuing and such S&P Approved Threshold Downgrade Event has been
continuing for at least 10 Local Business Days or since this Annex was executed,
zero; otherwise, infinity.
“Fitch
Threshold” means, with respect to Party A and any Valuation Date,
if a Fitch Approved Threshold Downgrade Event has occurred and is continuing
and
such Fitch Approved Threshold Downgrade Event has been continuing for at least
30 calendar days or since this Annex was executed, zero; otherwise,
infinity
|
|
“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
|
|
|
(C)
|
“Minimum
Transfer Amount” means USD 50,000; provided further, with
respect to the Secured Party at any time when the Secured Party is
a
Defaulting Party, “Minimum Transfer Amount”
means zero.
|
|
|
(D)
|
Rounding: The
Delivery Amount will be rounded up and the Return Amount will be
rounded
down to the nearest integral multiple of USD
1000.
|
|
(c)
|
Valuation
and Timing.
|
|
|
(i)
|
“Valuation
Agent” means Party A. The Valuation Agent’s
calculations shall be made in accordance with standard market practices
using commonly accepted third party sources such as Bloomberg or
Reuters.
|
|
|
(ii)
|
“Valuation
Date” means each Local Business
Day.
|
|
|
(iii)
|
“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same
date.
|
|
|
(iv)
|
“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies. The following Termination Events will
be a “Specified Condition” for the party
specified (that party being the Affected Party if the Termination
Event
occurs with respect to that
party): None.
|
|
(e)
|
Substitution.
|
|
|
(i)
|
“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
|
|
|
(ii)
|
Consent. If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
|
(i)
|
“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
|
|
|
(ii)
|
Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value, Moody’s Value, and Fitch Value, on
any date, of Eligible Collateral will be calculated as
follows:
|
For
Eligible Collateral comprised of Cash, the amount of such Cash.
For
Eligible Collateral comprising securities, the sum of (A) the product of (1)(x)
the bid price at the Valuation Time for such securities on the principal
national securities exchange on which such securities are listed, or (y) if
such
securities are not listed on a national securities exchange, the bid price
for
such securities quoted at the Valuation Time by any principal market maker
for
such securities selected by the Valuation Agent, or (z) if no such bid price
is
listed or quoted for such date, the bid price listed or quoted (as the case
may
be) at the Valuation Time for the day next preceding such date on which such
prices were available and (2) the applicable Valuation Percentage for such
Eligible Collateral, and (B) the accrued interest on such securities (except
to
the extent Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or included
in the applicable price referred to in the immediately preceding clause (A))
as
of such date.
|
|
(iii)
|
Alternative. The
provisions of Paragraph 5 will apply; provided, that the obligation
of the
appropriate party to deliver the undisputed amount to the other party
will
not arise prior to the time that would otherwise have applied to
the
Transfer pursuant to, or deemed made, under Paragraph 3 if no dispute
had
arisen.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
|
(i)
|
Eligibility
to Hold Posted Collateral;
Custodians.
|
Party
B
is not and will not be entitled to hold Posted Collateral. Party B's
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b);
provided that the following conditions applicable to it are
satisfied:
|
|
(1)
|
The
Custodian for Party B shall be the same banking institution that
acts as
Trustee for the Certificates.
|
|
|
(2)
|
The
Custodian for Party B shall have a short-term unsecured and unsubordinated
debt rating from S&P of at least “A-1” or, if no short-term rating is
available, a long-term unsecured debt rating from S&P of
“A+.” The Trustee is required to replace the Custodian within
60 calendar days of the Custodian’s rating falling below “A-1,” in the
case of a short-term rating, or “A+,” in the case of a long-term
rating.
|
|
|
Initially,
the Custodian for Party B is: to be advised in
writing by Party B to Party A.
|
|
|
(ii)
|
Use
of Posted Collateral. The provisions of Paragraph
6(c) will not apply to Party B; therefore, Party B will not have
any of
the rights specified in Paragraph 6(c)(i) or 6(c)(ii); provided,
however,
that the Trustee shall invest Cash Posted Credit Support in such
investments as designated by Party A, with losses (net of gains)
incurred
in respect of such investments to be for the account of Party A;
provided
further, that such investments designated by Party A shall be limited
to
money market funds rated “AAAm” or “AAAm-G” by S&P and from which such
invested Cash Posted Credit Support may be withdrawn upon no more
than 2
Local Business Day’s notice of a request for
withdrawal.
|
|
(h)
|
Distributions
and Interest Amount.
|
|
|
(i)
|
Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash pursuant to Paragraph
13(g)(ii).
|
|
|
(ii)
|
Transfer
of Interest Amount. The Transfer of the Interest Amount will
be made on the second Local Business Day following the end of each
calendar month and on any other Local Business Day on which Posted
Collateral in the form of Cash is Transferred to the Pledgor pursuant
to
Paragraph 3(b); provided, however, that the obligation of Party B
to
Transfer any Interest Amount to Party A shall be limited to the extent
that Party B has earned and received such funds and such funds are
available to Party B.
|
|
|
(iii)
|
Alternative
to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
|
|
(i)
|
Additional
Representation(s). There are no additional
representations by either party.
|
|
(j)
|
Other
Eligible Support and Other Posted
Support.
|
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
(k)
|
Demands
and Notices. All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to
or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance with
the
terms of this paragraph) to the other
party:
|
If
to
Party A:
▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇,
England
Attention: Swaps
Documentation
Facsimile
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6858
Telephone
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6904
with
a
copy to:
General
Counsel’s Office
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Notices
to Party A shall not be deemed effective unless delivered to the London address
set forth above.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: to be provided in writing to Party
A.
|
(l)
|
Address
for Transfers. Each Transfer hereunder shall be
made to the address specified in writing from time to time by the
party to
which such Transfer will be made.
|
|
(m)
|
Other
Provisions.
|
|
|
(i)
|
Collateral
Account. The Secured Party shall cause any
Custodian appointed hereunder to open and maintain a segregated trust
account and to hold, record and identify all the Posted Collateral
in such
segregated trust account and, subject to Paragraph 8(a), such Posted
Collateral shall at all times be and remain the property of the Pledgor
and shall at no time constitute the property of, or be commingled
with the
property of, the Secured Party or the
Custodian.
|
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (a) the term “Secured Party” as used in this Annex means only
Party B, (b) the term “Pledgor” as used in this Annex means only Party A,
(c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
|
(iii)
|
Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, Fitch Value”. Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words “a Value” and inserting in lieu thereof
“an S&P Value, a Moody’s Value, and a Fitch Value” and (B) deleting
the words “the Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, and Fitch Value”. Paragraph 5 (flush language)
is hereby amended by deleting the word “Value” and inserting in lieu
thereof “S&P Value, Moody’s Value, or Fitch
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, and Fitch Value”. Paragraph 5(i)(C) is hereby
amended by deleting the word “the Value, if” and inserting in lieu thereof
“any one or more of the S&P Value, Moody’s Value, or Fitch Value, as
may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Moody’s Value, or Fitch Value” and (2)
deleting the second instance of the words “the Value” and inserting in
lieu thereof “such disputed S&P Value, Moody’s Value, or Fitch
Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, Moody’s Value or Fitch
Value”.
|
|
|
(iv)
|
Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
|
|
|
(v)
|
Events
of Default. Paragraph 7 will not apply to cause
any Event of Default to exist with respect to Party B except that
Paragraph 7(i) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support
Annex. Notwithstanding anything to the contrary in Paragraph 7,
any failure by Party A to comply with or perform any obligation to
be
complied with or performed by Party A under the Credit Support Annex
shall
only be an Event of Default if (A) a Moody’s Second Trigger Downgrade
Event has occurred and been continuing for 30 or more Local Business
Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, (C) a Fitch Required
Ratings Downgrade Event has occurred and been continuing for 30 or
more
days, or (D) a DBRS Required Ratings Downgrade Event has occurred
and been
continuing for 30 or more days.
|
|
|
(vi)
|
Expenses. Notwithstanding
anything to the contrary in Paragraph 10, the Pledgor will be responsible
for, and will reimburse the Secured Party for, all transfer and other
taxes and other costs involved in any Transfer of Eligible
Collateral.
|
|
|
(vii)
|
Withholding. Paragraph
6(d)(ii) is hereby amended by inserting immediately after “the Interest
Amount” in the fourth line thereof the words “less any
applicable withholding taxes.”
|
|
|
(viii)
|
Additional
Definitions. As used in this
Annex:
|
“Exposure”
has the meaning specified in Paragraph 12, except that (1) after the word
“Agreement” the words “(assuming, for this purpose only, that Part
1(f)(i)(A)-(E) of the Schedule is deleted)” shall be inserted and (2) at the end
of the definition of Exposure, the words “with terms that are, in all material
respects, no less beneficial for Party B than those of this Agreement” shall be
added.
“Fitch
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Approved Ratings
Threshold.
“Fitch
Credit Support Amount” means, for any Valuation Date,
|
|
(A)
|
if
the Fitch Threshold for such Valuation Date is zero, an amount equal
to
the sum of (1) the Secured Party’s Exposure and (2) the sum, for each
Transaction, of the product of (a) the Fitch Volatility Cushion for
such
Transaction and (b) the Notional Amount of such
Transaction for the Calculation Period which includes such Valuation
Date,
or
|
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“Fitch
Valuation Percentage” means, for any Valuation Date and each item
of Eligible Collateral, if the Fitch Threshold for such Valuation Date is zero,
the corresponding percentage for such Eligible Collateral in the column headed
“Fitch Valuation Percentage”.
“Fitch
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the Fitch Valuation
Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii). The Fitch Value of Cash will be the amount of such
Cash.
“Fitch
Volatility Cushion” means, for any Transaction, the related
percentage set forth in the following table:
|
Remaining
Weighted Average Maturity of Transaction
(years)
|
||||||||||||||||||||||||||||||||||||||||
|
Rating
of Most Senior Class of Certificates Outstanding on
Valuation
Date
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
||||||||||||||||||||||||||||||
|
At
least “AA-”
|
0.6 | % | 1.6 | % | 2.6 | % | 3.4 | % | 4.2 | % | 4.8 | % | 5.5 | % | 5.9 | % | 6.4 | % | 7.0 | % | ||||||||||||||||||||
|
“A+/A”
|
0.3 | % | 0.8 | % | 1.3 | % | 1.7 | % | 2.1 | % | 2.4 | % | 2.8 | % | 3.0 | % | 3.3 | % | 3.6 | % | ||||||||||||||||||||
|
“A-/BBB+”
or lower
|
0.2 | % | 0.6 | % | 1.0 | % | 1.3 | % | 1.6 | % | 1.9 | % | 2.1 | % | 2.3 | % | 2.5 | % | 2.7 | % | ||||||||||||||||||||
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the parties
for
the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible
Collateral for which delivery is contemplated by other means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“▇▇▇▇▇’▇
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and it is not the
case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for at least 30 Local Business Days, an amount
equal
to the greater of (x) zero and (y) the sum of the Secured Party’s Exposure
and the aggregate of ▇▇▇▇▇’▇ First Trigger Additional Amounts for each
Transaction and such Valuation
Date;
|
|
|
(B)
|
if
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, an amount equal to
the
greatest of (x) zero, (y) the aggregate amount of the Next Payments
for
each Transaction and such Valuation Date, and (z) the sum of the
Secured
Party’s Exposure and the aggregate of ▇▇▇▇▇’▇ Second Trigger Additional
Amounts for each Transaction and such Valuation Date;
or
|
|
|
(C)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is infinity,
zero.
|
“▇▇▇▇▇’▇
First Trigger Additional Amount” means, for
any Valuation Date and any Transaction, the product of (i) the applicable
▇▇▇▇▇’▇ First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date.
“▇▇▇▇▇’▇
First Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from ▇▇▇▇▇’▇ at least equal to the ▇▇▇▇▇’▇ First Trigger Ratings
Threshold.
“▇▇▇▇▇’▇
Second Trigger Additional Amount” means, for any Valuation Date
and any Transaction,
|
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the product
of (i)
the applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 2, (ii)
the Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the product of
(i) the
applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 3, (ii) the
Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
|
“▇▇▇▇▇’▇
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the ▇▇▇▇▇'▇ Threshold for such
Valuation Date is zero and it is not the case that a ▇▇▇▇▇’▇ Second Trigger
Downgrade Event has occurred and been continuing for at least 30
Local Business Days, the corresponding percentage for such Eligible Collateral
in the column headed “▇▇▇▇▇’▇ First Trigger Valuation Percentage” or (ii) if a
▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “▇▇▇▇▇’▇ Second
Trigger Valuation Percentage”.
“▇▇▇▇▇’▇
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent and (y) the applicable ▇▇▇▇▇’▇ Valuation Percentage set forth in
Paragraph 13(b)(ii). The ▇▇▇▇▇’▇ Value of Cash will be the amount of such
Cash.
“Next
Payment” means, for each Transaction and each Valuation Date, the
greater of (i) the aggregate amount of any payments due to be made by Party
A
under Section 2(a) in respect of such Transaction on the related Next Payment
Date less the aggregate amount of any payments due to be made by Party B under
Section 2(a) on such Next Payment Date (any such payments determined based
on
rates prevailing on such Valuation Date) and (ii) zero.
“Next
Payment Date” means, for each Transaction, the date on which the
next scheduled payment under such Transaction is due to be paid.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved Ratings
Threshold.
“S&P
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the Secured Party’s Exposure;
|
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
125% of
the Secured Party’s Exposure; or
|
|
|
(C)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the S&P Threshold for such
Valuation Date is zero and it is not the case that a S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business
Days, the corresponding percentage for such Eligible Collateral in the column
headed “S&P Approved Ratings Valuation Percentage” or (ii) if an S&P
Required Ratings Downgrade Event has occurred and been continuing for at least
10 Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed “S&P Required Ratings Valuation
Percentage”.
“S&P
Value” means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the Valuation Agent
for
such Eligible Collateral and (y) the applicable S&P Valuation Percentage for
such Eligible Collateral set forth in paragraph 13(b)(ii).
“Transaction-Specific
Hedge” means any Transaction in respect of which (x) the notional
amount is “balance guaranteed” or (y) the notional amount for any Calculation
Period (as defined in the related Confirmation) otherwise is not a specific
dollar amount that is fixed at the inception of the Transaction.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value, ▇▇▇▇▇’▇ Value and Fitch Value with respect to any Eligible Collateral or
Posted Collateral, the applicable S&P Valuation Percentage, ▇▇▇▇▇’▇
Valuation Percentage, or Fitch Valuation Percentage for such Eligible Collateral
or Posted Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
“Value”
shall mean, in respect of any date, the related S&P Value, the related
▇▇▇▇▇’▇ Value, and the related Fitch Value.
[Remainder
of this page intentionally left blank]
Table
1
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
First Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
First Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.15%
|
1.10%
|
|
Greater
than 1 but less than or equal to 2
|
0.30%
|
1.20%
|
|
Greater
than 2 but less than or equal to 3
|
0.40%
|
1.30%
|
|
Greater
than 3 but less than or equal to 4
|
0.60%
|
1.40%
|
|
Greater
than 4 but less than or equal to 5
|
0.70%
|
1.50%
|
|
Greater
than 5 but less than or equal to 6
|
0.80%
|
1.60%
|
|
Greater
than 6 but less than or equal to 7
|
1.00%
|
1.60%
|
|
Greater
than 7 but less than or equal to 8
|
1.10%
|
1.70%
|
|
Greater
than 8 but less than or equal to 9
|
1.20%
|
1.80%
|
|
Greater
than 9 but less than or equal to 10
|
1.30%
|
1.90%
|
|
Greater
than 10 but less than or equal to 11
|
1.40%
|
1.90%
|
|
Greater
than 11 but less than or equal to 12
|
1.50%
|
2.00%
|
|
Greater
than 12 but less than or equal to 13
|
1.60%
|
2.10%
|
|
Greater
than 13 but less than or equal to 14
|
1.70%
|
2.10%
|
|
Greater
than 14 but less than or equal to 15
|
1.80%
|
2.20%
|
|
Greater
than 15 but less than or equal to 16
|
1.90%
|
2.30%
|
|
Greater
than 16 but less than or equal to 17
|
2.00%
|
2.30%
|
|
Greater
than 17 but less than or equal to 18
|
2.00%
|
2.40%
|
|
Greater
than 18 but less than or equal to 19
|
2.00%
|
2.40%
|
|
Greater
than 19 but less than or equal to 20
|
2.00%
|
2.50%
|
|
Greater
than 20 but less than or equal to 21
|
2.00%
|
2.50%
|
|
Greater
than 21 but less than or equal to 22
|
2.00%
|
2.50%
|
|
Greater
than 22 but less than or equal to 23
|
2.00%
|
2.50%
|
|
Greater
than 23 but less than or equal to 24
|
2.00%
|
2.50%
|
|
Greater
than 24 but less than or equal to 25
|
2.00%
|
2.50%
|
|
Greater
than 25 but less than or equal to 26
|
2.00%
|
2.50%
|
|
Greater
than 26 but less than or equal to 27
|
2.00%
|
2.50%
|
|
Greater
than 27 but less than or equal to 28
|
2.00%
|
2.50%
|
|
Greater
than 28 but less than or equal to 29
|
2.00%
|
2.50%
|
|
Greater
than 29
|
2.00%
|
2.50%
|
Table
2
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
Swaps
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency Swaps
|
|
Equal
to or less than 1
|
0.50%
|
6.10%
|
|
Greater
than 1 but less than or equal to 2
|
1.00%
|
6.30%
|
|
Greater
than 2 but less than or equal to 3
|
1.50%
|
6.40%
|
|
Greater
than 3 but less than or equal to 4
|
1.90%
|
6.60%
|
|
Greater
than 4 but less than or equal to 5
|
2.40%
|
6.70%
|
|
Greater
than 5 but less than or equal to 6
|
2.80%
|
6.80%
|
|
Greater
than 6 but less than or equal to 7
|
3.20%
|
7.00%
|
|
Greater
than 7 but less than or equal to 8
|
3.60%
|
7.10%
|
|
Greater
than 8 but less than or equal to 9
|
4.00%
|
7.20%
|
|
Greater
than 9 but less than or equal to 10
|
4.40%
|
7.30%
|
|
Greater
than 10 but less than or equal to 11
|
4.70%
|
7.40%
|
|
Greater
than 11 but less than or equal to 12
|
5.00%
|
7.50%
|
|
Greater
than 12 but less than or equal to 13
|
5.40%
|
7.60%
|
|
Greater
than 13 but less than or equal to 14
|
5.70%
|
7.70%
|
|
Greater
than 14 but less than or equal to 15
|
6.00%
|
7.80%
|
|
Greater
than 15 but less than or equal to 16
|
6.30%
|
7.90%
|
|
Greater
than 16 but less than or equal to 17
|
6.60%
|
8.00%
|
|
Greater
than 17 but less than or equal to 18
|
6.90%
|
8.10%
|
|
Greater
than 18 but less than or equal to 19
|
7.20%
|
8.20%
|
|
Greater
than 19 but less than or equal to 20
|
7.50%
|
8.20%
|
|
Greater
than 20 but less than or equal to 21
|
7.80%
|
8.30%
|
|
Greater
than 21 but less than or equal to 22
|
8.00%
|
8.40%
|
|
Greater
than 22 but less than or equal to 23
|
8.00%
|
8.50%
|
|
Greater
than 23 but less than or equal to 24
|
8.00%
|
8.60%
|
|
Greater
than 24 but less than or equal to 25
|
8.00%
|
8.60%
|
|
Greater
than 25 but less than or equal to 26
|
8.00%
|
8.70%
|
|
Greater
than 26 but less than or equal to 27
|
8.00%
|
8.80%
|
|
Greater
than 27 but less than or equal to 28
|
8.00%
|
8.80%
|
|
Greater
than 28 but less than or equal to 29
|
8.00%
|
8.90%
|
|
Greater
than 29
|
8.00%
|
9.00%
|
Table
3
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.65%
|
6.30%
|
|
Greater
than 1 but less than or equal to 2
|
1.30%
|
6.60%
|
|
Greater
than 2 but less than or equal to 3
|
1.90%
|
6.90%
|
|
Greater
than 3 but less than or equal to 4
|
2.50%
|
7.10%
|
|
Greater
than 4 but less than or equal to 5
|
3.10%
|
7.40%
|
|
Greater
than 5 but less than or equal to 6
|
3.60%
|
7.70%
|
|
Greater
than 6 but less than or equal to 7
|
4.20%
|
7.90%
|
|
Greater
than 7 but less than or equal to 8
|
4.70%
|
8.20%
|
|
Greater
than 8 but less than or equal to 9
|
5.20%
|
8.40%
|
|
Greater
than 9 but less than or equal to 10
|
5.70%
|
8.60%
|
|
Greater
than 10 but less than or equal to 11
|
6.10%
|
8.80%
|
|
Greater
than 11 but less than or equal to 12
|
6.50%
|
9.00%
|
|
Greater
than 12 but less than or equal to 13
|
7.00%
|
9.20%
|
|
Greater
than 13 but less than or equal to 14
|
7.40%
|
9.40%
|
|
Greater
than 14 but less than or equal to 15
|
7.80%
|
9.60%
|
|
Greater
than 15 but less than or equal to 16
|
8.20%
|
9.80%
|
|
Greater
than 16 but less than or equal to 17
|
8.60%
|
10.00%
|
|
Greater
than 17 but less than or equal to 18
|
9.00%
|
10.10%
|
|
Greater
than 18 but less than or equal to 19
|
9.40%
|
10.30%
|
|
Greater
than 19 but less than or equal to 20
|
9.70%
|
10.50%
|
|
Greater
than 20 but less than or equal to 21
|
10.00%
|
10.70%
|
|
Greater
than 21 but less than or equal to 22
|
10.00%
|
10.80%
|
|
Greater
than 22 but less than or equal to 23
|
10.00%
|
11.00%
|
|
Greater
than 23 but less than or equal to 24
|
10.00%
|
11.00%
|
|
Greater
than 24 but less than or equal to 25
|
10.00%
|
11.00%
|
|
Greater
than 25 but less than or equal to 26
|
10.00%
|
11.00%
|
|
Greater
than 26 but less than or equal to 27
|
10.00%
|
11.00%
|
|
Greater
than 27 but less than or equal to 28
|
10.00%
|
11.00%
|
|
Greater
than 28 but less than or equal to 29
|
10.00%
|
11.00%
|
|
Greater
than 29
|
10.00%
|
11.00%
|
| Barclays Bank PLC |
| 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
|
DATE:
|
October 17, 2007 |
| TO: | U.S. Bank National Association, as Trustee of Charming Shoppes Master Trust |
| ATTENTION: | ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇ |
| TELEPHONE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FACSIMILE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FROM: | Barclays Bank PLC |
| SUBJECT: | Fixed Income Derivatives Confirmation |
| REFERENCE NUMBER: | 1991462B |
The
purpose of this long-form confirmation (“Confirmation”) is to
confirm the terms and conditions of the Transaction entered into on the Trade
Date specified below (the “Transaction”) between Barclays Bank
PLC (“Party A”) and U.S. Bank National
Association, as Trustee of Charming Shoppes Master
Trust (“Party B”) created under the Pooling and Servicing
Agreement, dated as of November 25, 1997, as amended (the “Pooling and
Servicing Agreement”) among the Charming Shoppes Receivables Corp.,
Spirit of America, Inc., as servicer (in such capacity, the
“Servicer”), and U.S. Bank National Association, as trustee
(the “Trustee”), as supplemented from time to time prior to the
date hereof, including by the Series 2007-1 Supplement to the Pooling and
Servicing Agreement dated as of October 17, 2007 (the “Series
Supplement”). The Series Supplement and the Pooling and
Servicing Agreement are collectively referred to herein as the “Base
Agreement”. This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the
terms
set forth below and replaces any previous agreement between us with respect
to
the subject matter hereof. Item 2 of this Confirmation constitutes a
“Confirmation” as referred to in the ISDA Master Agreement
(defined below); Item 3 of this Confirmation constitutes a
“Schedule” as referred to in the ISDA Master Agreement; and
Annex A hereto constitutes Paragraph 13 of a Credit Support Annex to the
Schedule.
|
1.
|
The
Confirmation set forth at Item 2 hereof shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association, Inc. (the “ISDA
Master Agreement”), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set
forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex
A
hereto (the “Credit Support Annex”) and together with
this Confirmation and the ISDA Master Agreement, the
“Agreement”). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed
by
such ISDA Master Agreement.
|
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Swap
|
|
Notional
Amount:
|
An
amount equal for each Calculation Period to (x) initially, USD
16,900,000,00 and thereafter the outstanding principal amount of
the Class
B-1 Certificates (as defined in the Series Supplement) at the end
of the
first day of such Calculation Period, minus (y) the amount or amounts,
as
applicable, set forth for such period on Schedule I attached
hereto.
|
|
Trade
Date:
|
October
10, 2007
|
|
Effective
Date:
|
October
17, 2007
|
|
Termination
Date:
|
The
earlier of (i) September 15, 2017 subject to adjustment in accordance
with
the Following Business Day Convention, and (ii) the date on which
the
outstanding principal amount of the Class B-1 Certificates (as defined
in
the Series Supplement) is reduced to zero, subject to early termination
in
accordance with the terms of the Agreement. In accordance with
the Series Supplement, the Class B Expected Final Payment Date is
January
15, 2013, subject to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate:
|
5.084%
|
|
Fixed
Rate Day
Count
Fraction:
|
Actual/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate
Payer:
|
Party
A
|
|
Floating
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention..
|
|
Floating
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate
Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York, Philadelphia and Milford, Ohio
|
|
Business
Day
Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
Account
Details and Settlement Information:
|
|
|
Payments
to Party
A:
|
Correspondent:
BARCLAYS BANK PLC NEW YORK
FEED:
▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS
SWAPS
Beneficiary
Account: ▇▇▇-▇▇▇▇▇-▇
|
|
Payments
to Party
B:
|
U.S.
Bank National Association
ABA
Number: ▇▇▇▇▇▇▇▇▇
Account
Number: 1731-0332-2058
Reference: Charming
Shoppes/2576000052 (2007-1 Hedge)
Beneficiary
Name: US Bank Structured Fin
Attn: ▇▇▇▇▇▇
▇▇▇
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
|
|
For
the purposes of this Agreement:-
|
|
(a)
|
“Specified
Entity” will not apply to Party A or Party B for any
purpose.
|
|
(b)
|
“Specified
Transaction” will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
|
|
(i)
|
The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party
B.
|
|
|
(ii)
|
The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B; provided, however,
that notwithstanding anything to the contrary in Section
5(a)(ii), any failure by Party A to comply with or perform any obligation
to be complied with or performed by Party A under the Credit Support
Annex
shall not constitute an Event of Default under Section 5(a)(ii) unless
(A)
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days, (B) an S&P Required Ratings
Downgrade Event has occurred and been continuing for 10 or more Local
Business Days, (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days, or (D) a DBRS Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
days.
|
|
|
(iii)
|
The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for 30 or more Local Business Days, (B) an S&P
Required Ratings Downgrade Event has occurred and been continuing
for 10
or more Local Business Days, (C) a Fitch Required Ratings Downgrade
Event
has occurred and been continuing for 30 or more days, or (D) a DBRS
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more days.
|
|
|
(iv)
|
The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
|
|
|
(v)
|
The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
|
|
|
(vi)
|
The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except
that such term shall not include obligations in respect of deposits received
in
the ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent
(3%) of the Shareholders’ Equity of Party A or, if applicable, a guarantor under
an Eligible Guarantee with credit ratings at least equal to the S&P Required
Ratings Threshold, the ▇▇▇▇▇’▇ Second Trigger Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Shareholders’
Equity” means with respect to an entity, at any time, such party’s
shareholders’ equity (on a consolidated basis) determined in accordance with
generally accepted accounting principles in such party’s jurisdiction of
incorporation or organization as at the end of such party’s most recently
completed fiscal year.
|
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B; provided, however, that, for
purposes of applying Section 5(a)(vii) to Party B: (A) Section
5(a)(vii)(2) shall not apply, (B) Section 5(a)(vii)(3) shall not
apply to
any assignment, arrangement or composition that is effected by or
pursuant
to the Base Agreement, (C) Section 5(a)(vii)(4) shall not apply to
a
proceeding instituted, or a petition presented, by Party A or any
of its
Affiliates (notwithstanding anything to the contrary in this Agreement,
for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning
set
forth in Section 14 of the ISDA Master Agreement), (D) Section
5(a)(vii)(6) shall not apply to any appointment that is effected
by or
pursuant to the Base Agreement, or any appointment to which Party
B has
not yet become subject; (E) Section 5(a)(vii) (7) shall not apply;
(F)
Section 5(a)(vii)(8) shall apply only to the extent of any event
which has
an effect analogous to any of the events specified in clauses (1),
(3),
(4), (5) or (6) of Section 5(a)(vii), in each case as modified in
this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not
apply.
|
|
|
(viii)
|
The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
|
|
(d)
|
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
|
|
(i)
|
The
“Illegality” provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
|
|
|
(ii)
|
The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)”, and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
|
(iii)
|
The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that Party
A
shall not be entitled to designate an Early Termination Date by reason
of
a Tax Event upon Merger in respect of which it is the Affected
Party.
|
|
|
(iv)
|
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
|
|
(e)
|
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
|
|
(f)
|
Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
|
|
|
(i)
|
Market
Quotation will apply, provided, however, that, in the event of a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by a Reference Market-maker that
is
an Eligible Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such Reference Market-maker
to enter into a Replacement Transaction, and (3) made on the basis that Unpaid
Amounts in respect of the Terminated Transaction or group of Transactions are
to
be excluded but, without limitation, any payment or delivery that would, but
for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to
be included.
|
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
|
|
(a)
|
if,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
|
(b)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations from Approved Replacements have been communicated to Party
B
and remain capable of becoming legally binding upon acceptance by
Party B,
the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotations (for the avoidance
of
doubt, (i) a Market Quotation expressed as a negative number is lower
than
a Market Quotation expressed as a positive number and (ii) the lower
of
two Market Quotations expressed as negative numbers is the one with
the
largest absolute value); or
|
|
|
(c)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotation from
an
Approved Replacement has been communicated to Party B and remains
capable
of becoming legally binding upon acceptance by Party B, Party B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.”
|
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
|
“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted against any amount payable by Party B under
the
immediately preceding clause (I).”
|
|
(E)
|
At
any time on or before the Early Termination Date at which two or
more
Market Quotations from Approved Replacements have been communicated
to
Party B and remain capable of becoming legally binding upon acceptance
by
Party B, Party B shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, (i) a Market Quotation
expressed as a negative number is lower than a Market Quotation expressed
as a positive number and (ii) the lower of two Market Quotations
expressed
as negative numbers is the one with the largest absolute
value).
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(g)
|
“Termination
Currency” means USD.
|
|
(h)
|
Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
|
|
(i)
|
Additional
Amounts Upon Certain Partial
Terminations
|
(i) Capitalized
terms used but not otherwise defined in this Part 1(i) have the meanings
assigned thereto in the Series Supplement. In addition, the following
terms have the meanings set forth below:
“Available
Reserve Funds” means funds on deposit in the Hedge Reserve Account, other than
interest and other investment income.
“Prefunding
Reduction” means a principal payment made on the Class B-1 Certificates as a
result of the release of funds from the Pre-Funding Account on the Lane ▇▇▇▇▇▇
Portfolio Distribution Date pursuant to Section 4.19(b) of the Series
Supplement.
“Hedge
Reserve Account” means a segregated trust account maintained by the Trustee at
the Trustee in the name of the Trustee, for the benefit of Party A as
counterparty under each of the Interest Rate Hedge Agreements.
(ii) If
the Notional Amount is reduced on any date as a result of a Prefunding
Reduction, the parties hereto shall treat the portion of such reduction (without
duplication) as terminated on such date (a “Terminated
Transaction”). Party A shall calculate the Market Quotation for the
Terminated Transaction as set forth below.
“Market
Quotation” means, with respect
to a Terminated Transaction, an amount determined on the basis of quotations
from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to Party A (expressed as a negative number) or by
Party A (expressed as a positive number) in consideration of an agreement
between Party A and the quoting Reference Market-maker to enter into such
Terminated Transaction (with the same fixed and floating payment rates and
remaining term as this Transaction) on the relevant Payment
Date. Party A will request each Reference Market-maker to provide its
quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably practicable
prior to the relevant Payment Date. The day and time as of which
those quotations are to be obtained will be selected in good faith by Party
A. If more than three quotations are provided, the Market Quotation
will be the arithmetic mean of the quotations, without regard to the quotations
having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer
than three quotations are provided, Party A will determine the Market Quotation
in good faith. Notwithstanding the foregoing, Party A shall be the
sole Reference Market-maker unless: (a) the reduction in the
aggregate Notional Amounts of the Transactions between Party A and Party B
being
terminated at the same time is equal to or greater than $50 million, and (b)
the
Servicer or the Trustee requests that quotations from Reference Market-makers
other than Party A are utilized.
If
the amount so determined by Party A
in respect of a Terminated Transaction is positive, Party B shall owe such
amount to Party A, which shall be payable (with interest thereon accruing from
such Payment Date and calculated at the Fixed Rate) on the next Payment Date
to
the extent provided in the Series Supplement. If such amount is
negative, Party A shall pay such amount to Party B on the next Local Business
Day.
(iii) The
amount payable by Party B under clause (ii) of this Part 1(i), if any, shall
be
paid from the following sources:
|
|
first,
funds available for that purpose under Section 4.11(t) of the Series
Supplement,
|
|
|
second,
Available Reserve Funds in the Hedge Reserve Account,
and
|
|
|
third,
funds that would otherwise be released on such date to the holder
of the
Exchangeable Seller Certificate from the Funding Period Reserve
Account.
|
(iv) Party
B’s obligation to deposit funds to the Hedge Reserve Account shall be limited
to
the extent that funds are available for such purpose under Section 4.11(t)
of
the Series Supplement, and failure to make such deposit due to such funds not
being available shall not constitute an Event of Default. Funds held
in the Hedge Reserve Account shall be used solely to fund Party B’s obligations
under clause (ii) of this Part 1(i) in respect of a Terminated Transaction,
and
may not be used for any other purpose.
(v) Funds
on deposit in the Hedge Reserve Account (after giving effect to any withdrawals
from the Hedge Reserve Account) shall be invested by the Trustee at the
direction of the Servicer in Permitted Investments maturing no later than the
following Distribution Date. The interest and other investment income
(net of investment expenses and losses) earned on such investments shall be
withdrawn from the Hedge Reserve Account and transferred to the holder of the
Exchangeable Seller Certificate on each Distribution Date, provided that any
other deposit to, or withdrawal from, such account required to be made on such
date has occurred.
(vi) The
Hedge Reserve Account shall be terminated following the earlier to occur of
(a)
the completion of the acquisition of the Lane ▇▇▇▇▇▇ Portfolio by the Originator
or (b) the payment in full of any amounts due under Part 1(i)
hereof.
|
Part
2.
|
Tax
Matters.
|
|
(a)
|
Tax
Representations.
|
|
|
(i)
|
Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
|
(ii)
|
Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable
Tax” in Section 14 of this Agreement, all Taxes in relation to payments
by
Party A shall be Indemnifiable Taxes unless (i) such Taxes are assessed
directly against Party B and not by deduction or withholding by Party
A or
(ii) arise as a result of a Change in Tax Law (in which case such
Tax
shall be an Indemnifiable Tax only if such Tax satisfies the definition
of
Indemnifiable Tax provided in Section 14). In relation to
payments by Party B, no Tax shall be an Indemnifiable Tax, unless
the Tax
is due to a Change in Tax Law and otherwise satisfies the definition
of
Indemnifiable Tax provided in Section
14.
|
|
Part
3.
|
Agreement
to Deliver Documents.
|
|
(a)
|
For
the purpose of Section 4(a)(i), tax forms, documents, or certificates
to
be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A and Party B
|
Any
form or document required or reasonably requested to allow the other
party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Promptly
upon reasonable demand by the other
party.
|
|
(b)
|
For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support
Document, as the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon request after becoming publicly available
|
Yes
|
|
Party
A
|
Opinions
of counsel to Party A substantially in the form of Exhibit A to this
Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
opinion of counsel to Party B reasonably satisfactory to Party
A.
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
executed copy of the Base Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
|
|
Part
4. Miscellaneous.
|
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of
this Agreement:
|
|
|
Address
for notices or communications to Party
A:
|
|
Address:
|
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
|
Facsimile:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
|
Phone:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
(For
all
purposes)
Address
for notices or communications
to Party B:
|
Address:
|
EP—MN—WS3D
|
|
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
|
Structured
Finance—Charming Shoppes 2007-1
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Phone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
(For
all
purposes)
|
(b)
|
Process
Agent. For the purpose of Section
13(c):
|
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices. The
provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
|
|
Party
A is a Multibranch Party and may act through its London and New York
Offices.
|
|
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is Party A; provided,
however, that if an Event of Default shall have occurred with respect
to
Party A, Party B shall have the right to appoint as Calculation Agent
a
financial institution which would qualify as a Reference Market-maker,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A.
|
|
(f)
|
Credit
Support Document.
|
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that
the law of the State of New York shall govern their rights and duties
in
whole (including any claim or controversy arising out of or relating
to
this Agreement), without regard to the conflict of law provisions
thereof
other than New York General Obligations Law Sections 5-1401 and
5-1402.
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) will
apply to each Transaction
hereunder.
|
|
(j)
|
Affiliate. “Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes of
this
Agreement, including for purposes of Section
6(b)(ii).
|
|
Part
5.
|
Other
Provisions.
|
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Base
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Base
Agreement) or to a “Section” “of this Agreement” will be construed as a
reference to a Section of the ISDA Master Agreement; each herein reference
to a
“Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
|
(b)
|
Amendments
to ISDA Master Agreement.
|
|
|
(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
|
|
|
(ii)
|
Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof: “to another account in the same legal and tax jurisdiction as the
original account”.
|
|
|
(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
|
“(g) Relationship
Between Parties.
|
|
(1)
|
Non-Reliance. It
is acting for its own account, and it has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation
to
enter into that Transaction, it being understood that information
and
explanations related to the terms and conditions of a Transaction
will not
be considered investment advice or a recommendation to enter into
that
Transaction. No communication (written or oral) received from
the other party will be deemed to be an assurance or guarantee as
to the
expected results of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(2)
|
Assessment
and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming,
and assumes, the risks of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(3)
|
Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
|
|
(4)
|
Status
of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
|
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract
participant” as defined in Section 1a(12) of the Commodity Exchange Act,
as amended.”
|
|
|
(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) by deleting the
words “to transfer” and inserting the words “to effect a Permitted
Transfer” in lieu thereof.
|
|
|
(vi)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
First
Rating Trigger Collateral. If Party A has failed to
comply with or perform any obligation to be complied with or performed
by
Party A in accordance with the Credit Support Annex and such failure
has
not given rise to an Event of Default under Section 5(a)(i) or Section
5(a)(iii), then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination
Event.
|
|
|
(ii)
|
Second
Rating Trigger Replacement. The occurrence of any
event described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
|
(A)
|
A
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and at least one Eligible Replacement
has made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (on the basis that
paragraphs (i) and (ii) of Part 1(f) (Payments on Early Termination)
apply) and which remains capable of becoming legally binding upon
acceptance.
|
|
|
(B)
|
An
S&P Required Ratings Downgrade Event has occurred and been continuing
for 60 or more calendar days.
|
|
|
(C)
|
A
Fitch Required Ratings Downgrade Event has occurred and been continuing
for 30 or more calendar days.
|
|
|
(D)
|
A
DBRS Required Ratings Downgrade Event has occurred and been continuing
for
30 or more calendar days.
|
|
|
(iii)
|
Amendment
of Base Agreement. If, without the prior written
consent of Party A where such consent is required under the Base
Agreement, an amendment is made to the Base Agreement which amendment
could reasonably be expected to have a material adverse effect on
the
interests of Party A (excluding, for the avoidance of doubt, any
amendment
to the Base Agreement that is entered into solely for the purpose
of
appointing a successor servicer, master servicer, securities
administrator, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(iv)
|
Termination
of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have
been paid in accordance with the terms of the Base Agreement, an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(v)
|
Securitization
Unwind. If a
Securitization Unwind (as hereinafter defined) occurs, an Additional
Termination Event shall have occurred with respect to Party B and
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding Section
6(b)(iv) of this Agreement, both Party A and Party B shall have the
right
to designate an Early Termination Date in respect of this Additional
Termination Event. The Early Termination Date in respect of
such Additional Termination Event shall be not earlier than the latest
possible date that the amount of a termination payment may be submitted
to
a party exercising a clean-up call in order to be included in the
clean-up
call price. As used herein, “Securitization
Unwind” means notice of the requisite amount of a party’s
intention to exercise its option to purchase the underlying credit
card
receivables pursuant the Base Agreement is given by the Trustee to
certificateholders or noteholders, as applicable, pursuant to the
Base
Agreement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that no Relevant
Entity has credit ratings at least equal to the Required Ratings
Threshold
of each relevant Rating Agency (such event, a “Required Ratings
Downgrade Event”), then Party A shall, as soon as reasonably
practicable and so long as a Required Ratings Downgrade Event is
in
effect, at its own expense, use commercially reasonable efforts to
procure
either (A) a Permitted Transfer or (B) an Eligible
Guarantee.
|
|
(e)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“Subject
to Section 6(b)(ii), neither Party A nor Party B is permitted to assign, novate
or transfer (whether by way of security or otherwise) as a whole or in part
any
of its rights, obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b) satisfaction
of
the Rating Agency Condition, except that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may transfer or assign this Agreement to any Person, including,
without
limitation, another of Party A’s offices, branches or affiliates (any such
Person, office, branch or affiliate, a “Transferee”) on
at least five Business Days’ prior written notice to Party B and the
Trustee; provided that, with respect to this clause (c), (A) as
of the date of such transfer the Transferee will not be required
to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments
of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement
in
respect of such Tax (B) a Termination Event or Event of Default does
not
occur under this Agreement as a result of such transfer; (C) such
notice
is accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred;
(D) Party A will be responsible for any costs or expenses incurred
in
connection with such transfer and (E) Party A obtains in respect
of such
transfer a written acknowledgement of satisfaction of the Rating
Agency
Condition (except for ▇▇▇▇▇’▇). Party B will execute such
documentation as is reasonably deemed necessary by Party A for the
effectuation of any such transfer.”
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such
transfer.
|
|
(f)
|
Non-Recourse. Party
A acknowledges and agree that, notwithstanding any provision in this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Base Agreement and that Party A will not have
any
recourse to any of the directors, officers, employees, shareholders
or
affiliates of the Party B with respect to any claims, losses, damages,
liabilities, indemnities or other obligations in connection with
any
transactions contemplated hereby. In the event that the Trust and
the
proceeds thereof should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and
the
proceeds thereof, any claims against or obligations of Party B under
the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not
revive. The Trustee shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Trust from the Trust
created pursuant to the Base Agreement. This provision will
survive the termination of this
Agreement.
|
|
(g)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such designation
or transfer.
|
|
(h)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set
off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
|
|
(i)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Rating Agencies has been provided
prior
written notice of the same and such amendment satisfies the Rating
Agency
Condition with respect to S&P, Fitch and
DBRS.
|
|
(j)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Rating
Agency notice of such event or condition; provided that failure to
provide
notice of such event or condition pursuant to this Part 5(j) shall
not
constitute an Event of Default or a Termination Event. With
respect to Party B, delivery of such notice shall not be required
unless a
Responsible Officer (as defined in the Base Agreement) has written
notice
or actual knowledge of such event or
condition.
|
|
(k)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Trust, or the trust formed pursuant to the Base Agreement,
in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy
or
similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will
preclude,
or be deemed to stop, Party A (i) from taking any action prior to
the
expiration of the aforementioned one year and one day period, or
if longer
the applicable preference period then in effect, in (A) any case
or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person
other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding. This provision will survive the termination of this
Agreement.
|
|
(l)
|
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by U.S. Bank National Association (“U.S. Bank”) not
in its individual capacity, but solely as Trustee of the Charming
Shoppes
Master Trust created pursuant to the Base Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder; (b)
U.S.
Bank has been directed pursuant to the Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of U.S.
Bank
but is made and intended for the purpose of binding only Charming
Shoppes
Master Trust; and (d) under no circumstances shall U.S. Bank in its
individual capacity be personally liable for any payments hereunder
or for
the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken under this
Agreement.
|
|
(m)
|
Severability. If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(n)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing, and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(o)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(p)
|
Regarding
Party A. Party B acknowledges and agrees that Party A,
in its capacity as swap provider, has had and will have no involvement
in
and, accordingly Party A accepts no responsibility for: (i) the
establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) the preparation of or passing on the
disclosure and other information (other than disclosure and information
furnished by Party A) contained in any offering circular for the
Certificates, the Base Agreement, or any other agreements or documents
used by Party B or any other party in connection with the marketing
and
sale of the Certificates; (vi) the ongoing operations and administration
of Party B, including the furnishing of any information to Party
B which
is not specifically required under this Agreement; or (vii) any other
aspect of Party B’s existence.
|
|
(q)
|
Rating
Agency Requirements. Notwithstanding anything to
the contrary herein, to the extent any Rating Agency does not assign
a
rating to the notes or certificates, as applicable, issued pursuant
to the
Base Agreement, references to the requirements of such Rating Agency
herein shall be ignored for purposes of this
Agreement.
|
|
(r)
|
Transfer
or Restructuring to Avoid Termination Event. Section
6(b)(ii) of the Agreement shall be amended in its entirety to read
as
follows: If either an Illegality under Section 5(b)(i)(1), a Tax
Event
occurs and there is only one Affected Party, or if a Tax Event Upon
Merger
occurs and the Burdened Party is the Affected Party, the Affected
Party
will, as a condition to its right to designate an Early Termination
Date
under Section 6(b)(iv), within 20 days after it gives notice under
Section
6(b)(i), use all reasonable efforts (which will not require such
party to
incur a loss, excluding immaterial, incidental expenses) to
(A) transfer all its rights and obligations under this
Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist
or
(B) replace the Affected Transaction(s) with one or more economically
equivalent transactions so that such Termination Event ceases to
exist.
|
|
|
If
the Affected Party is not able to cause such a transfer or restructuring
it will give notice to the other party to that effect within such
20 day
period, whereupon the other party may effect such a transfer or cause
such
a restructuring within 30 days after the notice is given under Section
6(b)(i).
|
|
|
Any
transfer by a party under this Section 6(b)(ii) will be subject to
and
conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party’s policies in effect at
such time would permit it to enter into transactions with the transferee
on the terms proposed. Any restructuring by a party under this
Section 6(b)(ii) will be subject to and conditional upon the satisfaction
of the Rating Agency Condition and the prior written consent of the
other
party, which consent shall not unreasonably be
withheld.
|
|
(s)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold, the ▇▇▇▇▇’▇ First Trigger Ratings Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a), (b),
(c) and (d) of the definition of Permitted Transfer (as determined by Party
B in
accordance with the Base Agreement) if such entity were a Transferee, as defined
in the definition of Permitted Transfer.
“DBRS”
means Dominion Bond Rating Service, or any successor thereto.
“DBRS
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “AA(low)” and a short-term
unsecured and unsubordinated debt rating from DBRS of
“R-1(middle)”.
“DBRS
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from DBRS at least equal to the DBRS Required Ratings
Threshold.
“DBRS
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “BBB”.
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations of Party A under this Agreement (or, solely
for
purposes of the definition of Eligible Replacement, all present and future
obligations of such Eligible Replacement under this Agreement or its
replacement, as applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency Condition with
respect to S&P, Fitch and DBRS, and either (A) a law firm has given a legal
opinion confirming that none of the guarantor’s payments to Party B under such
guarantee will be subject to deduction or Tax collected by withholding, or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to deduction or Tax collected by withholding, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required, or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Replacement” means an entity (A) (I) (x) which has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or (y) all
present and future obligations of which entity owing to Party B under this
Agreement (or its replacement, as applicable) are guaranteed pursuant to an
Eligible Guarantee provided by a guarantor with credit ratings from S&P at
least equal to the S&P Required Ratings Threshold, in either case if S&P
is a Rating Agency, (II) (x) which has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold or (y) all present and
future obligations of which entity owing to Party B under this Agreement (or
its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if ▇▇▇▇▇’▇ is a Rating
Agency, (III) (x) which has credit ratings from Fitch at least equal to the
applicable Fitch Approved Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Fitch at least equal to the
Fitch Approved Ratings Threshold, in either case if Fitch is a Rating Agency,
and (IV) (x) which has credit ratings from DBRS at least equal to the applicable
DBRS Approved Ratings Threshold or (y) all present and future obligations of
which entity owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee provided by a
guarantor with credit ratings from DBRS at least equal to the DBRS Approved
Ratings Threshold, in either case if DBRS is a Rating Agency, and (B) that
has
executed or agrees to execute a Regulation AB indemnification agreement, if
applicable.
|
|
“Financial
Institution” means a bank, broker/dealer, insurance company,
structured investment company or derivative product
company.
|
“Firm
Offer” means a quotation from an Eligible Replacement (i) in an
amount equal to the actual amount payable by or to Party B in consideration
of
an agreement between Party B and such Eligible Replacement to replace Party
A as
the counterparty to this Agreement by way of novation or, if such novation
is
not possible, an agreement between Party B and such Eligible Replacement to
enter into a Replacement Transaction (assuming that all Transactions hereunder
become Terminated Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to this Agreement
or
enter a Replacement Transaction that will become legally binding upon such
Eligible Replacement upon acceptance by Party B.
“Fitch”
means Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “A” and a short-term
unsecured and unsubordinated debt rating from Fitch of “F1”.
“Fitch
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Required Ratings
Threshold.
“Fitch
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “BBB-”.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A3” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-2”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody’s, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody’s of
“A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s
rights, liabilities, duties and obligations under this Agreement, with respect
to which transfer each of the following conditions is satisfied: (a)
the Transferee is an Eligible Replacement that is a recognized dealer in
interest rate swaps; (b) as of the date of such transfer the Transferee would
not be required to withhold or deduct on account of Tax from any payments under
this Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (c) an Event of Default or Termination Event would not occur as
a
result of such transfer (d) pursuant to a written instrument (the “Transfer
Agreement”); the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction; (e) such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (f) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (g) Moody’s has been given prior written notice
of such transfer and the Rating Agency Condition (other than with respect to
▇▇▇▇▇’▇) is satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
“Rating
Agencies” means, with respect to any date of determination, each
of S&P, ▇▇▇▇▇’▇, Fitch and DBRS, to the extent that each such
rating agency is then providing a rating for any of the related notes or
certificates, as applicable.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Rating Agency specified in connection
with such proposed act or omission, that the party proposing such act or failure
to act must consult with each of the specified Rating Agencies and receive
from
each such Rating Agency prior written confirmation that the proposed action
or
inaction would not cause a downgrade or withdrawal of the then-current rating
of
any Certificates or Notes.
“Relevant
Entity” means Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date, and (ii)
has terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold, the Moody’s Second Trigger Ratings Threshold, the Fitch Required
Ratings Threshold and the DBRS Required Ratings Threshold.
“S&P”
means Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating of “A-1” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating of “A+” from S&P.
“S&P
Required Ratings Downgrade Event” means that
no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
|
|
“S&P
Required Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement,
(I)
if such entity is a Financial Institution, a short-term unsecured
and
unsubordinated debt rating of “A-2” from S&P, or, if such entity does
not have a short-term unsecured and unsubordinated debt rating from
S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of “BBB+” from S&P, or (II) if such entity is not
a Financial Institution, a short-term unsecured and unsubordinated
debt
rating of “A-1” from S&P, or, if such entity does not have a
short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating or counterparty
rating
of “A+” from S&P.
|
[Remainder
of this page intentionally left blank.]
The
time
of dealing will be confirmed by Party A upon written
request. Barclays is regulated by the Financial Services
Authority. Barclays is acting for its own account in respect of this
Transaction.
Please
confirm that the foregoing correctly sets forth all the terms and conditions
of
our agreement with respect to the Transaction by responding within three (3)
Business Days by promptly signing in the space provided below and both (i)
faxing the signed copy to Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global Operations, Fax
▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the
signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not
affect the validity or enforceability of the Transaction against
you. This facsimile shall be the only documentation in respect of the
Transaction and accordingly no hard copy versions of this Confirmation for
this
Transaction shall be provided unless Party B requests such a copy.
|
For
and on behalf of
BARCLAYS
BANK PLC
|
For
and on behalf of
U.S.
BANK NATIONAL ASSOCIATION, NOT
IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY
AS
TRUSTEE OF CHARMING SHOPPES
MASTER
TRUST
|
|
Name: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
Date:
|
Name: /s/
Ta_____ ▇▇▇▇▇▇-______
Title: Vice
President
Date: 10/17/07
|
Barclays
Bank PLC and its Affiliates, including Barclays Capital Inc., may share with
each other information, including non-public credit information, concerning
its
clients and prospective clients. If you do not want such information
to be shared, you must write to the Director of Compliance, Barclays Bank PLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
SCHEDULE
I
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
|
17-Oct-07
|
1-Nov-07
|
15,051,562.50
|
|
1-Nov-07
|
15-Nov-07
|
3,036,718.75
|
|
15-Nov-07
|
15-Dec-07
|
2,477,786.48
|
|
15-Dec-07
|
15-Jan-08
|
1,918,854.20
|
|
15-Jan-08
|
15-Feb-08
|
1,359,921.93
|
|
15-Feb-08
|
15-Mar-08
|
924,218.80
|
|
15-Mar-08
|
15-Apr-08
|
488,515.68
|
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of October 17, 2007 between
Barclays
Bank PLC (hereinafter referred to as “Party A” or
“Pledgor”)
and
U.S.
Bank
National Association, as Trustee of Charming Shoppes Master Trust
(hereinafter
referred to as “Party B” or “Secured
Party”).
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
|
|
Paragraph
13. Elections and
Variables.
|
|
(a)
|
Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
|
(A)
|
“Delivery
Amount” has the meaning specified in
Paragraph 3(a), except that:
|
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation Date”,
and
|
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall be deleted in its entirety and replaced
with the following:
|
“The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greatest of
|
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Credit Support Amount for such Valuation
Date exceeds (b) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Credit Support Amount for such Valuation
Date exceeds (b) the Fitch Value, as of such Valuation Date, of all
Posted
Credit Support held by the Secured
Party.”
|
|
|
(B)
|
“Return
Amount” has the meaning specified in Paragraph 3(b), except
that:
|
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the least of
|
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation
Date,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Moody’s
Credit Support Amount for such Valuation Date,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Value, as of such Valuation Date, of
all
Posted Credit Support held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation
Date.”
|
|
|
(C)
|
“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation
Date,
reference shall be made to the S&P Credit Support Amount, the Moody’s
Credit Support Amount, or the Fitch Credit Support Amount, in each
case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
|
(ii)
|
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral” (for the avoidance of doubt, all Eligible Collateral
to be denominated in USD):
|
Collateral
|
S&P
Approved Ratings Valuation Percentage
|
S&P
Required Ratings Valuation Percentage
|
Moody's
First Trigger Valuation Percentage
|
Moody's
Second Trigger Valuation Percentage
|
Fitch
& DBRS Valuation Percentage
|
|
(A)Cash
|
100%
|
80%
|
100%
|
100%
|
100%
|
|
(B)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.9%
|
79.1%
|
100%
|
100%
|
97.5%
|
|
(C)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not more
than
ten years
|
92.6%
|
74.1%
|
100%
|
94%
|
86.3%
|
|
(D)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
N/A
|
N/A
|
100%
|
87%
|
79%
|
Notwithstanding
the Valuation Percentages set forth in the preceding table, upon the first
Transfer of Eligible Collateral under this Annex, the Pledgor may, at the
Pledgor’s expense, agree the Valuation Percentages in relation to (B) through
(D) above with the relevant rating agency (to the extent such rating agency
is
providing a rating for the Certificates), and upon such agreement (as evidenced
in writing), such Valuation Percentages shall supersede those set forth in
the
preceding table.
|
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other Eligible
Support” for the party specified:
Such
Other Eligible Support as the Pledgor may designate; provided, at the expense
of
the Pledgor, the prior written consent of the relevant rating agency (to the
extent such rating agency is providing a rating for the Certificates) shall
have
been obtained. For the avoidance of doubt, there are no items that
qualify as Other Eligible Support as of the date of this Annex.
|
|
(iv)
|
Threshold.
|
|
|
(A)
|
“Independent
Amount” means zero with respect to Party A and Party
B.
|
|
|
(B)
|
“Moody’s
Threshold” means, with respect to Party A and any Valuation
Date, if a Moody's First Trigger Downgrade Event has occurred and
is
continuing and such Moody’s First Trigger Downgrade Event has been
continuing for at least 30 Local Business Days or since this Annex
was
executed, zero; otherwise,
infinity.
|
“S&P
Threshold” means, with respect to Party A and any Valuation Date,
if an S&P Approved Threshold Downgrade Event has occurred and is
continuing and such S&P Approved Threshold Downgrade Event has been
continuing for at least 10 Local Business Days or since this Annex was executed,
zero; otherwise, infinity.
“Fitch
Threshold” means, with respect to Party A and any Valuation Date,
if a Fitch Approved Threshold Downgrade Event has occurred and is continuing
and
such Fitch Approved Threshold Downgrade Event has been continuing for at least
30 calendar days or since this Annex was executed, zero; otherwise,
infinity
|
|
“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
|
|
|
(C)
|
“Minimum
Transfer Amount” means USD 50,000; provided further, with
respect to the Secured Party at any time when the Secured Party is
a
Defaulting Party, “Minimum Transfer Amount”
means zero.
|
|
|
(D)
|
Rounding: The
Delivery Amount will be rounded up and the Return Amount will be
rounded
down to the nearest integral multiple of USD
1000.
|
|
(c)
|
Valuation
and Timing.
|
|
|
(i)
|
“Valuation
Agent” means Party A. The Valuation Agent’s
calculations shall be made in accordance with standard market practices
using commonly accepted third party sources such as Bloomberg or
Reuters.
|
|
|
(ii)
|
“Valuation
Date” means each Local Business
Day.
|
|
|
(iii)
|
“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same
date.
|
|
|
(iv)
|
“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies. The following Termination Events will
be a “Specified Condition” for the party
specified (that party being the Affected Party if the Termination
Event
occurs with respect to that
party): None.
|
|
(e)
|
Substitution.
|
|
|
(i)
|
“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
|
|
|
(ii)
|
Consent. If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
|
(i)
|
“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
|
|
|
(ii)
|
Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value, Moody’s Value, and Fitch Value, on
any date, of Eligible Collateral will be calculated as
follows:
|
For
Eligible Collateral comprised of Cash, the amount of such Cash.
For
Eligible Collateral comprising securities, the sum of (A) the product of (1)(x)
the bid price at the Valuation Time for such securities on the principal
national securities exchange on which such securities are listed, or (y) if
such
securities are not listed on a national securities exchange, the bid price
for
such securities quoted at the Valuation Time by any principal market maker
for
such securities selected by the Valuation Agent, or (z) if no such bid price
is
listed or quoted for such date, the bid price listed or quoted (as the case
may
be) at the Valuation Time for the day next preceding such date on which such
prices were available and (2) the applicable Valuation Percentage for such
Eligible Collateral, and (B) the accrued interest on such securities (except
to
the extent Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or included
in the applicable price referred to in the immediately preceding clause (A))
as
of such date.
|
|
(iii)
|
Alternative. The
provisions of Paragraph 5 will apply; provided, that the obligation
of the
appropriate party to deliver the undisputed amount to the other party
will
not arise prior to the time that would otherwise have applied to
the
Transfer pursuant to, or deemed made, under Paragraph 3 if no dispute
had
arisen.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
|
(i)
|
Eligibility
to Hold Posted Collateral;
Custodians.
|
Party
B
is not and will not be entitled to hold Posted Collateral. Party B's
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b);
provided that the following conditions applicable to it are
satisfied:
|
|
(1)
|
The
Custodian for Party B shall be the same banking institution that
acts as
Trustee for the Certificates.
|
|
|
(2)
|
The
Custodian for Party B shall have a short-term unsecured and unsubordinated
debt rating from S&P of at least “A-1” or, if no short-term rating is
available, a long-term unsecured debt rating from S&P of
“A+.” The Trustee is required to replace the Custodian within
60 calendar days of the Custodian’s rating falling below “A-1,” in the
case of a short-term rating, or “A+,” in the case of a long-term
rating.
|
Initially,
the Custodian for Party B is: to be advised in
writing by Party B to Party A.
|
|
(ii)
|
Use
of Posted Collateral. The provisions of Paragraph
6(c) will not apply to Party B; therefore, Party B will not have
any of
the rights specified in Paragraph 6(c)(i) or 6(c)(ii); provided,
however,
that the Trustee shall invest Cash Posted Credit Support in such
investments as designated by Party A, with losses (net of gains)
incurred
in respect of such investments to be for the account of Party A;
provided
further, that such investments designated by Party A shall be limited
to
money market funds rated “AAAm” or “AAAm-G” by S&P and from which such
invested Cash Posted Credit Support may be withdrawn upon no more
than 2
Local Business Day’s notice of a request for
withdrawal.
|
|
(h)
|
Distributions
and Interest Amount.
|
|
|
(i)
|
Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash pursuant to Paragraph
13(g)(ii).
|
|
|
(ii)
|
Transfer
of Interest Amount. The Transfer of the Interest Amount will
be made on the second Local Business Day following the end of each
calendar month and on any other Local Business Day on which Posted
Collateral in the form of Cash is Transferred to the Pledgor pursuant
to
Paragraph 3(b); provided, however, that the obligation of Party B
to
Transfer any Interest Amount to Party A shall be limited to the extent
that Party B has earned and received such funds and such funds are
available to Party B.
|
|
|
(iii)
|
Alternative
to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
|
|
(i)
|
Additional
Representation(s). There are no additional
representations by either party.
|
|
(j)
|
Other
Eligible Support and Other Posted
Support.
|
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
(k)
|
Demands
and Notices.All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to
or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance with
the
terms of this paragraph) to the other
party:
|
If
to
Party A:
▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇,
England
Attention: Swaps
Documentation
Facsimile
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6858
Telephone
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6904
with
a
copy to:
General
Counsel’s Office
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Notices
to Party A shall not be deemed effective unless delivered to the London address
set forth above.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: to be provided in writing to Party
A.
|
(l)
|
Address
for Transfers. Each Transfer hereunder shall be
made to the address specified in writing from time to time by the
party to
which such Transfer will be made.
|
|
(m)
|
Other
Provisions.
|
|
|
(i)
|
Collateral
Account. The Secured Party shall cause any
Custodian appointed hereunder to open and maintain a segregated trust
account and to hold, record and identify all the Posted Collateral
in such
segregated trust account and, subject to Paragraph 8(a), such Posted
Collateral shall at all times be and remain the property of the Pledgor
and shall at no time constitute the property of, or be commingled
with the
property of, the Secured Party or the
Custodian.
|
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (a) the term “Secured Party” as used in this Annex means only
Party B, (b) the term “Pledgor” as used in this Annex means only Party A,
(c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
|
(iii)
|
Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, Fitch Value”. Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words “a Value” and inserting in lieu thereof
“an S&P Value, a Moody’s Value, and a Fitch Value” and (B) deleting
the words “the Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, and Fitch Value”. Paragraph 5 (flush language)
is hereby amended by deleting the word “Value” and inserting in lieu
thereof “S&P Value, Moody’s Value, or Fitch
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Moody’s Value, and Fitch Value”. Paragraph 5(i)(C) is hereby
amended by deleting the word “the Value, if” and inserting in lieu thereof
“any one or more of the S&P Value, Moody’s Value, or Fitch Value, as
may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Moody’s Value, or Fitch Value” and (2)
deleting the second instance of the words “the Value” and inserting in
lieu thereof “such disputed S&P Value, Moody’s Value, or Fitch
Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, ▇▇▇▇▇’▇ Value or Fitch
Value”.
|
|
|
(iv)
|
Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
|
|
|
(v)
|
Events
of Default. Paragraph 7 will not apply to cause
any Event of Default to exist with respect to Party B except that
Paragraph 7(i) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support
Annex. Notwithstanding anything to the contrary in Paragraph 7,
any failure by Party A to comply with or perform any obligation to
be
complied with or performed by Party A under the Credit Support Annex
shall
only be an Event of Default if (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade
Event has occurred and been continuing for 30 or more Local Business
Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, (C) a Fitch Required
Ratings Downgrade Event has occurred and been continuing for 30 or
more
days, or (D) a DBRS Required Ratings Downgrade Event has occurred
and been
continuing for 30 or more days.
|
|
|
(vi)
|
Expenses. Notwithstanding
anything to the contrary in Paragraph 10, the Pledgor will be responsible
for, and will reimburse the Secured Party for, all transfer and other
taxes and other costs involved in any Transfer of Eligible
Collateral.
|
|
|
(vii)
|
Withholding. Paragraph
6(d)(ii) is hereby amended by inserting immediately after “the Interest
Amount” in the fourth line thereof the words “less any
applicable withholding taxes.”
|
|
|
(viii)
|
Additional
Definitions. As used in this
Annex:
|
“Exposure”
has the meaning specified in Paragraph 12, except that (1) after the word
“Agreement” the words “(assuming, for this purpose only, that Part
1(f)(i)(A)-(E) of the Schedule is deleted)” shall be inserted and (2) at the end
of the definition of Exposure, the words “with terms that are, in all material
respects, no less beneficial for Party B than those of this Agreement” shall be
added.
“Fitch
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Approved Ratings
Threshold.
“Fitch
Credit Support Amount” means, for any Valuation Date,
|
|
(A)
|
if
the Fitch Threshold for such Valuation Date is zero, an amount equal
to
the sum of (1) the Secured Party’s Exposure and (2) the sum, for each
Transaction, of the product of (a) the Fitch Volatility Cushion for
such
Transaction and (b) the Notional Amount of such
Transaction for the Calculation Period which includes such Valuation
Date,
or
|
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“Fitch
Valuation Percentage” means, for any Valuation Date and each item
of Eligible Collateral, if the Fitch Threshold for such Valuation Date is zero,
the corresponding percentage for such Eligible Collateral in the column headed
“Fitch Valuation Percentage”.
“Fitch
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the Fitch Valuation
Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii). The Fitch Value of Cash will be the amount of such
Cash.
“Fitch
Volatility Cushion” means, for any Transaction, the related
percentage set forth in the following table:
|
Remaining
Weighted Average Maturity of Transaction
(years)
|
||||||||||||||||||||||||||||||||||||||||
|
Rating
of Most Senior Class of Certificates Outstanding on
Valuation
Date
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
||||||||||||||||||||||||||||||
|
At
least “AA-”
|
0.6 | % | 1.6 | % | 2.6 | % | 3.4 | % | 4.2 | % | 4.8 | % | 5.5 | % | 5.9 | % | 6.4 | % | 7.0 | % | ||||||||||||||||||||
|
“A+/A”
|
0.3 | % | 0.8 | % | 1.3 | % | 1.7 | % | 2.1 | % | 2.4 | % | 2.8 | % | 3.0 | % | 3.3 | % | 3.6 | % | ||||||||||||||||||||
|
“A-/BBB+”
or lower
|
0.2 | % | 0.6 | % | 1.0 | % | 1.3 | % | 1.6 | % | 1.9 | % | 2.1 | % | 2.3 | % | 2.5 | % | 2.7 | % | ||||||||||||||||||||
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the parties
for
the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible
Collateral for which delivery is contemplated by other means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“▇▇▇▇▇’▇
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and it is not the
case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for at least 30 Local Business Days, an amount
equal
to the greater of (x) zero and (y) the sum of the Secured Party’s Exposure
and the aggregate of ▇▇▇▇▇’▇ First Trigger Additional Amounts for each
Transaction and such Valuation
Date;
|
|
|
(B)
|
if
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, an amount equal to
the
greatest of (x) zero, (y) the aggregate amount of the Next Payments
for
each Transaction and such Valuation Date, and (z) the sum of the
Secured
Party’s Exposure and the aggregate of ▇▇▇▇▇’▇ Second Trigger Additional
Amounts for each Transaction and such Valuation Date;
or
|
|
|
(C)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is infinity,
zero.
|
“▇▇▇▇▇’▇
First Trigger Additional Amount” means, for
any Valuation Date and any Transaction, the product of (i) the applicable
▇▇▇▇▇’▇ First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date.
“▇▇▇▇▇’▇
First Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from ▇▇▇▇▇’▇ at least equal to the ▇▇▇▇▇’▇ First Trigger Ratings
Threshold.
“▇▇▇▇▇’▇
Second Trigger Additional Amount” means, for any Valuation Date
and any Transaction,
|
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the product
of (i)
the applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 2, (ii)
the Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the product of
(i) the
applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 3, (ii) the
Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
|
“▇▇▇▇▇’▇
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the ▇▇▇▇▇'▇ Threshold for such
Valuation Date is zero and it is not the case that a ▇▇▇▇▇’▇ Second Trigger
Downgrade Event has occurred and been continuing for at least 30
Local Business Days, the corresponding percentage for such Eligible Collateral
in the column headed “▇▇▇▇▇’▇ First Trigger Valuation Percentage” or (ii) if a
▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “▇▇▇▇▇’▇ Second
Trigger Valuation Percentage”.
“▇▇▇▇▇’▇
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent and (y) the applicable ▇▇▇▇▇’▇ Valuation Percentage set forth in
Paragraph 13(b)(ii). The ▇▇▇▇▇’▇ Value of Cash will be the amount of such
Cash.
“Next
Payment” means, for each Transaction and each Valuation Date, the
greater of (i) the aggregate amount of any payments due to be made by Party
A
under Section 2(a) in respect of such Transaction on the related Next Payment
Date less the aggregate amount of any payments due to be made by Party B under
Section 2(a) on such Next Payment Date (any such payments determined based
on
rates prevailing on such Valuation Date) and (ii) zero.
“Next
Payment Date” means, for each Transaction, the date on which the
next scheduled payment under such Transaction is due to be paid.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved Ratings
Threshold.
“S&P
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the Secured Party’s Exposure;
|
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
125% of
the Secured Party’s Exposure; or
|
|
|
(C)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the S&P Threshold for such
Valuation Date is zero and it is not the case that a S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business
Days, the corresponding percentage for such Eligible Collateral in the column
headed “S&P Approved Ratings Valuation Percentage” or (ii) if an S&P
Required Ratings Downgrade Event has occurred and been continuing for at least
10 Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed “S&P Required Ratings Valuation
Percentage”.
“S&P
Value” means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the Valuation Agent
for
such Eligible Collateral and (y) the applicable S&P Valuation Percentage for
such Eligible Collateral set forth in paragraph 13(b)(ii).
“Transaction-Specific
Hedge” means any Transaction in respect of which (x) the notional
amount is “balance guaranteed” or (y) the notional amount for any Calculation
Period (as defined in the related Confirmation) otherwise is not a specific
dollar amount that is fixed at the inception of the Transaction.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value, ▇▇▇▇▇’▇ Value and Fitch Value with respect to any Eligible Collateral or
Posted Collateral, the applicable S&P Valuation Percentage, ▇▇▇▇▇’▇
Valuation Percentage, or Fitch Valuation Percentage for such Eligible Collateral
or Posted Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
“Value”
shall mean, in respect of any date, the related S&P Value, the related
▇▇▇▇▇’▇ Value, and the related Fitch Value.
[Remainder
of this page intentionally left blank]
Table
1
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
First Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
First Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.15%
|
1.10%
|
|
Greater
than 1 but less than or equal to 2
|
0.30%
|
1.20%
|
|
Greater
than 2 but less than or equal to 3
|
0.40%
|
1.30%
|
|
Greater
than 3 but less than or equal to 4
|
0.60%
|
1.40%
|
|
Greater
than 4 but less than or equal to 5
|
0.70%
|
1.50%
|
|
Greater
than 5 but less than or equal to 6
|
0.80%
|
1.60%
|
|
Greater
than 6 but less than or equal to 7
|
1.00%
|
1.60%
|
|
Greater
than 7 but less than or equal to 8
|
1.10%
|
1.70%
|
|
Greater
than 8 but less than or equal to 9
|
1.20%
|
1.80%
|
|
Greater
than 9 but less than or equal to 10
|
1.30%
|
1.90%
|
|
Greater
than 10 but less than or equal to 11
|
1.40%
|
1.90%
|
|
Greater
than 11 but less than or equal to 12
|
1.50%
|
2.00%
|
|
Greater
than 12 but less than or equal to 13
|
1.60%
|
2.10%
|
|
Greater
than 13 but less than or equal to 14
|
1.70%
|
2.10%
|
|
Greater
than 14 but less than or equal to 15
|
1.80%
|
2.20%
|
|
Greater
than 15 but less than or equal to 16
|
1.90%
|
2.30%
|
|
Greater
than 16 but less than or equal to 17
|
2.00%
|
2.30%
|
|
Greater
than 17 but less than or equal to 18
|
2.00%
|
2.40%
|
|
Greater
than 18 but less than or equal to 19
|
2.00%
|
2.40%
|
|
Greater
than 19 but less than or equal to 20
|
2.00%
|
2.50%
|
|
Greater
than 20 but less than or equal to 21
|
2.00%
|
2.50%
|
|
Greater
than 21 but less than or equal to 22
|
2.00%
|
2.50%
|
|
Greater
than 22 but less than or equal to 23
|
2.00%
|
2.50%
|
|
Greater
than 23 but less than or equal to 24
|
2.00%
|
2.50%
|
|
Greater
than 24 but less than or equal to 25
|
2.00%
|
2.50%
|
|
Greater
than 25 but less than or equal to 26
|
2.00%
|
2.50%
|
|
Greater
than 26 but less than or equal to 27
|
2.00%
|
2.50%
|
|
Greater
than 27 but less than or equal to 28
|
2.00%
|
2.50%
|
|
Greater
than 28 but less than or equal to 29
|
2.00%
|
2.50%
|
|
Greater
than 29
|
2.00%
|
2.50%
|
Table
2
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
Swaps
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency Swaps
|
|
Equal
to or less than 1
|
0.50%
|
6.10%
|
|
Greater
than 1 but less than or equal to 2
|
1.00%
|
6.30%
|
|
Greater
than 2 but less than or equal to 3
|
1.50%
|
6.40%
|
|
Greater
than 3 but less than or equal to 4
|
1.90%
|
6.60%
|
|
Greater
than 4 but less than or equal to 5
|
2.40%
|
6.70%
|
|
Greater
than 5 but less than or equal to 6
|
2.80%
|
6.80%
|
|
Greater
than 6 but less than or equal to 7
|
3.20%
|
7.00%
|
|
Greater
than 7 but less than or equal to 8
|
3.60%
|
7.10%
|
|
Greater
than 8 but less than or equal to 9
|
4.00%
|
7.20%
|
|
Greater
than 9 but less than or equal to 10
|
4.40%
|
7.30%
|
|
Greater
than 10 but less than or equal to 11
|
4.70%
|
7.40%
|
|
Greater
than 11 but less than or equal to 12
|
5.00%
|
7.50%
|
|
Greater
than 12 but less than or equal to 13
|
5.40%
|
7.60%
|
|
Greater
than 13 but less than or equal to 14
|
5.70%
|
7.70%
|
|
Greater
than 14 but less than or equal to 15
|
6.00%
|
7.80%
|
|
Greater
than 15 but less than or equal to 16
|
6.30%
|
7.90%
|
|
Greater
than 16 but less than or equal to 17
|
6.60%
|
8.00%
|
|
Greater
than 17 but less than or equal to 18
|
6.90%
|
8.10%
|
|
Greater
than 18 but less than or equal to 19
|
7.20%
|
8.20%
|
|
Greater
than 19 but less than or equal to 20
|
7.50%
|
8.20%
|
|
Greater
than 20 but less than or equal to 21
|
7.80%
|
8.30%
|
|
Greater
than 21 but less than or equal to 22
|
8.00%
|
8.40%
|
|
Greater
than 22 but less than or equal to 23
|
8.00%
|
8.50%
|
|
Greater
than 23 but less than or equal to 24
|
8.00%
|
8.60%
|
|
Greater
than 24 but less than or equal to 25
|
8.00%
|
8.60%
|
|
Greater
than 25 but less than or equal to 26
|
8.00%
|
8.70%
|
|
Greater
than 26 but less than or equal to 27
|
8.00%
|
8.80%
|
|
Greater
than 27 but less than or equal to 28
|
8.00%
|
8.80%
|
|
Greater
than 28 but less than or equal to 29
|
8.00%
|
8.90%
|
|
Greater
than 29
|
8.00%
|
9.00%
|
Table
3
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.65%
|
6.30%
|
|
Greater
than 1 but less than or equal to 2
|
1.30%
|
6.60%
|
|
Greater
than 2 but less than or equal to 3
|
1.90%
|
6.90%
|
|
Greater
than 3 but less than or equal to 4
|
2.50%
|
7.10%
|
|
Greater
than 4 but less than or equal to 5
|
3.10%
|
7.40%
|
|
Greater
than 5 but less than or equal to 6
|
3.60%
|
7.70%
|
|
Greater
than 6 but less than or equal to 7
|
4.20%
|
7.90%
|
|
Greater
than 7 but less than or equal to 8
|
4.70%
|
8.20%
|
|
Greater
than 8 but less than or equal to 9
|
5.20%
|
8.40%
|
|
Greater
than 9 but less than or equal to 10
|
5.70%
|
8.60%
|
|
Greater
than 10 but less than or equal to 11
|
6.10%
|
8.80%
|
|
Greater
than 11 but less than or equal to 12
|
6.50%
|
9.00%
|
|
Greater
than 12 but less than or equal to 13
|
7.00%
|
9.20%
|
|
Greater
than 13 but less than or equal to 14
|
7.40%
|
9.40%
|
|
Greater
than 14 but less than or equal to 15
|
7.80%
|
9.60%
|
|
Greater
than 15 but less than or equal to 16
|
8.20%
|
9.80%
|
|
Greater
than 16 but less than or equal to 17
|
8.60%
|
10.00%
|
|
Greater
than 17 but less than or equal to 18
|
9.00%
|
10.10%
|
|
Greater
than 18 but less than or equal to 19
|
9.40%
|
10.30%
|
|
Greater
than 19 but less than or equal to 20
|
9.70%
|
10.50%
|
|
Greater
than 20 but less than or equal to 21
|
10.00%
|
10.70%
|
|
Greater
than 21 but less than or equal to 22
|
10.00%
|
10.80%
|
|
Greater
than 22 but less than or equal to 23
|
10.00%
|
11.00%
|
|
Greater
than 23 but less than or equal to 24
|
10.00%
|
11.00%
|
|
Greater
than 24 but less than or equal to 25
|
10.00%
|
11.00%
|
|
Greater
than 25 but less than or equal to 26
|
10.00%
|
11.00%
|
|
Greater
than 26 but less than or equal to 27
|
10.00%
|
11.00%
|
|
Greater
than 27 but less than or equal to 28
|
10.00%
|
11.00%
|
|
Greater
than 28 but less than or equal to 29
|
10.00%
|
11.00%
|
|
Greater
than 29
|
10.00%
|
11.00%
|
| Barclays Bank PLC |
| 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
|
DATE:
|
October 17, 2007 |
| TO: | U.S. Bank National Association, as Trustee of Charming Shoppes Master Trust |
| ATTENTION: | ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇ |
| TELEPHONE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FACSIMILE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FROM: | Barclays Bank PLC |
| SUBJECT: | Fixed Income Derivatives Confirmation |
| REFERENCE NUMBER: | 1991456B |
The
purpose of this long-form confirmation (“Confirmation”) is to
confirm the terms and conditions of the Transaction entered into on the Trade
Date specified below (the “Transaction”) between Barclays Bank
PLC (“Party A”) and U.S. Bank National
Association, as Trustee of Charming Shoppes Master
Trust (“Party B”) created under the Pooling and Servicing
Agreement, dated as of November 25, 1997, as amended (the “Pooling and
Servicing Agreement”) among the Charming Shoppes Receivables Corp.,
Spirit of America, Inc., as servicer (in such capacity, the
“Servicer”), and U.S. Bank National Association, as trustee
(the “Trustee”), as supplemented from time to time prior to the
date hereof, including by the Series 2007-1 Supplement to the Pooling and
Servicing Agreement dated as of October 17, 2007 (the “Series
Supplement”). The Series Supplement and the Pooling and
Servicing Agreement are collectively referred to herein as the “Base
Agreement”. This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms
set forth below and replaces any previous agreement between us with respect
to
the subject matter hereof. Item 2 of this Confirmation constitutes a
“Confirmation” as referred to in the ISDA Master Agreement
(defined below); Item 3 of this Confirmation constitutes a
“Schedule” as referred to in the ISDA Master Agreement; and
Annex A hereto constitutes Paragraph 13 of a Credit Support Annex to the
Schedule.
|
1.
|
The
Confirmation set forth at Item 2 hereof shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association, Inc. (the “ISDA
Master Agreement”), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set
forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex
A
hereto (the “Credit Support Annex”) and together with
this Confirmation and the ISDA Master Agreement, the
“Agreement”). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed
by
such ISDA Master Agreement.
|
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Swap
|
|
Notional
Amount:
|
An
amount equal for each Calculation Period to (x) initially, USD
4,000,000.00 and thereafter the outstanding principal amount of the
Class
M-1 Certificates (as defined in the Series Supplement) at the end
of the
first day of such Calculation Period, minus (y) the amount or amounts,
as
applicable, set forth for such period on Schedule I attached
hereto.
|
|
Trade
Date:
|
October
10, 2007
|
|
Effective
Date:
|
October
17, 2007
|
|
Termination
Date:
|
The
earlier of (i) September 15, 2017, subject to adjustment in accordance
with the Following Business Day Convention, and (ii) the date on
which the
outstanding principal amount of the Class M-1 Certificates (as defined
in
the Series Supplement) is reduced to zero, subject to early termination
in
accordance with the terms of the Agreement. In accordance with
the Series Supplement, the Class M Expected Final Payment Date is
December
15, 2012, subject to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate:
|
5.081%
|
|
Fixed
Rate Day
Count
Fraction:
|
Actual/360
|
|
Floating
Amounts:
|
|
|
Floating
Rate
Payer:
|
Party
A
|
|
Floating
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention..
|
|
Floating
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate
Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
Count
Fraction
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York, Philadelphia and Milford, Ohio
|
|
Business
Day
Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
Account
Details and Settlement Information:
|
|
|
Payments
to Party
A:
|
Correspondent:
BARCLAYS BANK PLC NEW YORK
FEED:
▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS
SWAPS
Beneficiary
Account: ▇▇▇-▇▇▇▇▇-▇
|
|
Payments
to Party
B:
|
U.S.
Bank National Association
ABA
Number: ▇▇▇▇▇▇▇▇▇
Account
Number: 1731-0332-2058
Reference: Charming
Shoppes/2576000052 (2007-1 Hedge)
Beneficiary
Name: US Bank Structured Fin
Attn: ▇▇▇▇▇▇
▇▇▇
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
|
|
For
the purposes of this Agreement:-
|
|
(a)
|
“Specified
Entity” will not apply to Party A or Party B for any
purpose.
|
|
(b)
|
“Specified
Transaction” will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
|
|
(i)
|
The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party
B.
|
|
|
(ii)
|
The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B; provided, however,
that notwithstanding anything to the contrary in Section
5(a)(ii), any failure by Party A to comply with or perform any obligation
to be complied with or performed by Party A under the Credit Support
Annex
shall not constitute an Event of Default under Section 5(a)(ii) unless
(A)
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days, (B) an S&P Required Ratings
Downgrade Event has occurred and been continuing for 10 or more Local
Business Days, (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days, or (D) a DBRS Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
days.
|
|
|
(iii)
|
The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for 30 or more Local Business Days, (B) an S&P
Required Ratings Downgrade Event has occurred and been continuing
for 10
or more Local Business Days, (C) a Fitch Required Ratings Downgrade
Event
has occurred and been continuing for 30 or more days, or (D) a DBRS
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more days.
|
|
|
(iv)
|
The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
|
|
|
(v)
|
The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
|
|
|
(vi)
|
The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except
that such term shall not include obligations in respect of deposits received
in
the ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent
(3%) of the Shareholders’ Equity of Party A or, if applicable, a guarantor under
an Eligible Guarantee with credit ratings at least equal to the S&P Required
Ratings Threshold, the ▇▇▇▇▇’▇ Second Trigger Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Shareholders’
Equity” means with respect to an entity, at any time, such party’s
shareholders’ equity (on a consolidated basis) determined in accordance with
generally accepted accounting principles in such party’s jurisdiction of
incorporation or organization as at the end of such party’s most recently
completed fiscal year.
|
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B; provided, however, that, for
purposes of applying Section 5(a)(vii) to Party B: (A) Section
5(a)(vii)(2) shall not apply, (B) Section 5(a)(vii)(3) shall not
apply to
any assignment, arrangement or composition that is effected by or
pursuant
to the Base Agreement, (C) Section 5(a)(vii)(4) shall not apply to
a
proceeding instituted, or a petition presented, by Party A or any
of its
Affiliates (notwithstanding anything to the contrary in this Agreement,
for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning
set
forth in Section 14 of the ISDA Master Agreement), (D) Section
5(a)(vii)(6) shall not apply to any appointment that is effected
by or
pursuant to the Base Agreement, or any appointment to which Party
B has
not yet become subject; (E) Section 5(a)(vii) (7) shall not apply;
(F)
Section 5(a)(vii)(8) shall apply only to the extent of any event
which has
an effect analogous to any of the events specified in clauses (1),
(3),
(4), (5) or (6) of Section 5(a)(vii), in each case as modified in
this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not
apply.
|
|
|
(viii)
|
The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
|
|
(d)
|
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
|
|
(i)
|
The
“Illegality” provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
|
|
|
(ii)
|
The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)”, and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
|
(iii)
|
The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that Party
A
shall not be entitled to designate an Early Termination Date by reason
of
a Tax Event upon Merger in respect of which it is the Affected
Party.
|
|
|
(iv)
|
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
|
|
(e)
|
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
|
|
(f)
|
Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
|
|
|
(i)
|
Market
Quotation will apply, provided, however, that, in the event of a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by a Reference Market-maker that
is
an Eligible Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such Reference Market-maker
to enter into a Replacement Transaction, and (3) made on the basis that Unpaid
Amounts in respect of the Terminated Transaction or group of Transactions are
to
be excluded but, without limitation, any payment or delivery that would, but
for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to
be included.
|
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
|
|
(a)
|
if,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
|
(b)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations from Approved Replacements have been communicated to Party
B
and remain capable of becoming legally binding upon acceptance by
Party B,
the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotations (for the avoidance
of
doubt, (i) a Market Quotation expressed as a negative number is lower
than
a Market Quotation expressed as a positive number and (ii) the lower
of
two Market Quotations expressed as negative numbers is the one with
the
largest absolute value); or
|
|
|
(c)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotation from
an
Approved Replacement has been communicated to Party B and remains
capable
of becoming legally binding upon acceptance by Party B, Party B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.”
|
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
|
“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted against any amount payable by Party B under
the
immediately preceding clause (I).”
|
|
(E)
|
At
any time on or before the Early Termination Date at which two or
more
Market Quotations from Approved Replacements have been communicated
to
Party B and remain capable of becoming legally binding upon acceptance
by
Party B, Party B shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, (i) a Market Quotation
expressed as a negative number is lower than a Market Quotation expressed
as a positive number and (ii) the lower of two Market Quotations
expressed
as negative numbers is the one with the largest absolute
value).
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(g)
|
“Termination
Currency” means USD.
|
|
(h)
|
Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
|
|
(i)
|
Additional
Amounts Upon Certain Partial
Terminations
|
(i) Capitalized
terms used but not otherwise defined in this Part 1(i) have the meanings
assigned thereto in the Series Supplement. In addition, the following
terms have the meanings set forth below:
“Available
Reserve Funds” means funds on deposit in the Hedge Reserve Account, other than
interest and other investment income.
“Prefunding
Reduction” means a principal payment made on the Class M-1 Certificates as a
result of the release of funds from the Pre-Funding Account on the Lane ▇▇▇▇▇▇
Portfolio Distribution Date pursuant to Section 4.19(b) of the Series
Supplement.
“Hedge
Reserve Account” means a segregated trust account maintained by the Trustee at
the Trustee in the name of the Trustee, for the benefit of Party A as
counterparty under each of the Interest Rate Hedge Agreements.
(ii) If
the Notional Amount is reduced on any date as a result of a Prefunding
Reduction, the parties hereto shall treat the portion of such reduction (without
duplication) as terminated on such date (a “Terminated
Transaction”). Party A shall calculate the Market Quotation for the
Terminated Transaction as set forth below.
“Market
Quotation” means, with respect to a Terminated Transaction, an amount determined
on the basis of quotations from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to Party A
(expressed as a negative number) or by Party A (expressed as a positive number)
in consideration of an agreement between Party A and the quoting Reference
Market-maker to enter into such Terminated Transaction (with the same fixed
and
floating payment rates and remaining term as this Transaction) on the relevant
Payment Date. Party A will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable prior to the relevant Payment Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by
Party A. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard to
the
quotations having the highest and lowest values. If exactly three
such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, Party A
will determine the Market Quotation in good faith. Notwithstanding
the foregoing, Party A shall be the sole Reference Market-maker
unless: (a) the reduction in the aggregate Notional Amounts of the
Transactions between Party A and Party B being terminated at the same time
is
equal to or greater than $50 million, and (b) the Servicer or the Trustee
requests that quotations from Reference Market-makers other than Party A are
utilized.
If
the
amount so determined by Party A in respect of a Terminated Transaction is
positive, Party B shall owe such amount to Party A, which shall be payable
(with
interest thereon accruing from such Payment Date and calculated at the Fixed
Rate) on the next Payment Date to the extent provided in the Series
Supplement. If such amount is negative, Party A shall pay such amount
to Party B on the next Local Business Day.
(iii) The
amount payable by Party B under clause (ii) of this Part 1(i), if any, shall
be
paid from the following sources:
first,
funds available for that purpose under Section 4.11(t) of the Series
Supplement,
second,
Available Reserve Funds in the Hedge Reserve Account, and
third,
funds that would otherwise be released on such date to the holder of the
Exchangeable Seller Certificate from the Funding Period Reserve
Account.
(iv) Party
B’s obligation to deposit funds to the Hedge Reserve Account shall be limited
to
the extent that funds are available for such purpose under Section 4.11(t)
of
the Series Supplement, and failure to make such deposit due to such funds not
being available shall not constitute an Event of Default. Funds held
in the Hedge Reserve Account shall be used solely to fund Party B’s obligations
under clause (ii) of this Part 1(i) in respect of a Terminated Transaction,
and
may not be used for any other purpose.
(v) Funds
on deposit in the Hedge Reserve Account (after giving effect to any withdrawals
from the Hedge Reserve Account) shall be invested by the Trustee at the
direction of the Servicer in Permitted Investments maturing no later than the
following Distribution Date. The interest and other investment income
(net of investment expenses and losses) earned on such investments shall be
withdrawn from the Hedge Reserve Account and transferred to the holder of the
Exchangeable Seller Certificate on each Distribution Date, provided that any
other deposit to, or withdrawal from, such account required to be made on such
date has occurred.
(vi) The
Hedge Reserve Account shall be terminated following the earlier to occur of
(a)
the completion of the acquisition of the Lane ▇▇▇▇▇▇ Portfolio by the Originator
or (b) the payment in full of any amounts due under Part 1(i)
hereof.
|
Part
2.
|
Tax
Matters.
|
|
(a)
|
Tax
Representations.
|
|
|
(i)
|
Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
|
(ii)
|
Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable
Tax” in Section 14 of this Agreement, all Taxes in relation to payments
by
Party A shall be Indemnifiable Taxes unless (i) such Taxes are assessed
directly against Party B and not by deduction or withholding by Party
A or
(ii) arise as a result of a Change in Tax Law (in which case such
Tax
shall be an Indemnifiable Tax only if such Tax satisfies the definition
of
Indemnifiable Tax provided in Section 14). In relation to
payments by Party B, no Tax shall be an Indemnifiable Tax, unless
the Tax
is due to a Change in Tax Law and otherwise satisfies the definition
of
Indemnifiable Tax provided in Section
14.
|
|
Part
3.
|
Agreement
to Deliver Documents.
|
|
(a)
|
For
the purpose of Section 4(a)(i), tax forms, documents, or certificates
to
be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A and Party B
|
Any
form or document required or reasonably requested to allow the other
party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Promptly
upon reasonable demand by the other
party.
|
|
(b)
|
For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support
Document, as the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon request after becoming publicly available
|
Yes
|
|
Party
A
|
Opinions
of counsel to Party A substantially in the form of Exhibit A to this
Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
opinion of counsel to Party B reasonably satisfactory to Party
A.
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
executed copy of the Base Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
|
|
Part
4. Miscellaneous.
|
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of
this Agreement:
|
|
|
Address
for notices or communications to Party
A:
|
|
Address:
|
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
|
Facsimile:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
|
Phone:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
(For
all
purposes)
Address
for notices or communications
to Party B:
|
Address:
|
EP—MN—WS3D
|
|
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
|
Structured
Finance—Charming Shoppes 2007-1
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Phone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
(For
all
purposes)
|
(b)
|
Process
Agent. For the purpose of Section
13(c):
|
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices. The
provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
|
|
Party
A is a Multibranch Party and may act through its London and New York
Offices.
|
|
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is Party A; provided,
however, that if an Event of Default shall have occurred with respect
to
Party A, Party B shall have the right to appoint as Calculation Agent
a
financial institution which would qualify as a Reference Market-maker,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A.
|
|
(f)
|
Credit
Support Document.
|
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that
the law of the State of New York shall govern their rights and duties
in
whole (including any claim or controversy arising out of or relating
to
this Agreement), without regard to the conflict of law provisions
thereof
other than New York General Obligations Law Sections 5-1401 and
5-1402.
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) will
apply to each Transaction
hereunder.
|
|
(j)
|
Affiliate. “Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes of
this
Agreement, including for purposes of Section
6(b)(ii).
|
|
Part
5.
|
Other
Provisions.
|
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Base
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Base
Agreement) or to a “Section” “of this Agreement” will be construed as a
reference to a Section of the ISDA Master Agreement; each herein reference
to a
“Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
|
(b)
|
Amendments
to ISDA Master Agreement.
|
|
|
(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
|
|
|
(ii)
|
Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof: “to another account in the same legal and tax jurisdiction as the
original account”.
|
|
|
(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
|
“(g) Relationship
Between Parties.
|
|
(1)
|
Non-Reliance. It
is acting for its own account, and it has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation
to
enter into that Transaction, it being understood that information
and
explanations related to the terms and conditions of a Transaction
will not
be considered investment advice or a recommendation to enter into
that
Transaction. No communication (written or oral) received from
the other party will be deemed to be an assurance or guarantee as
to the
expected results of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(2)
|
Assessment
and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming,
and assumes, the risks of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(3)
|
Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
|
|
(4)
|
Status
of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
|
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract
participant” as defined in Section 1a(12) of the Commodity Exchange Act,
as amended.”
|
|
|
(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) by deleting the
words “to transfer” and inserting the words “to effect a Permitted
Transfer” in lieu thereof.
|
|
|
(vi)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
First
Rating Trigger Collateral. If Party A has failed to
comply with or perform any obligation to be complied with or performed
by
Party A in accordance with the Credit Support Annex and such failure
has
not given rise to an Event of Default under Section 5(a)(i) or Section
5(a)(iii), then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination
Event.
|
|
|
(ii)
|
Second
Rating Trigger Replacement. The occurrence of any
event described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
|
(A)
|
A
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and at least one Eligible Replacement
has made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (on the basis that
paragraphs (i) and (ii) of Part 1(f) (Payments on Early Termination)
apply) and which remains capable of becoming legally binding upon
acceptance.
|
|
|
(B)
|
An
S&P Required Ratings Downgrade Event has occurred and been continuing
for 60 or more calendar days.
|
|
|
(C)
|
A
Fitch Required Ratings Downgrade Event has occurred and been continuing
for 30 or more calendar days.
|
|
|
(D)
|
A
DBRS Required Ratings Downgrade Event has occurred and been continuing
for
30 or more calendar days.
|
|
|
(iii)
|
Amendment
of Base Agreement. If, without the prior written
consent of Party A where such consent is required under the Base
Agreement, an amendment is made to the Base Agreement which amendment
could reasonably be expected to have a material adverse effect on
the
interests of Party A (excluding, for the avoidance of doubt, any
amendment
to the Base Agreement that is entered into solely for the purpose
of
appointing a successor servicer, master servicer, securities
administrator, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(iv)
|
Termination
of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have
been paid in accordance with the terms of the Base Agreement, an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(v)
|
Securitization
Unwind. If a
Securitization Unwind (as hereinafter defined) occurs, an Additional
Termination Event shall have occurred with respect to Party B and
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding Section
6(b)(iv) of this Agreement, both Party A and Party B shall have the
right
to designate an Early Termination Date in respect of this Additional
Termination Event. The Early Termination Date in respect of
such Additional Termination Event shall be not earlier than the latest
possible date that the amount of a termination payment may be submitted
to
a party exercising a clean-up call in order to be included in the
clean-up
call price. As used herein, “Securitization
Unwind” means notice of the requisite amount of a party’s
intention to exercise its option to purchase the underlying credit
card
receivables pursuant the Base Agreement is given by the Trustee to
certificateholders or noteholders, as applicable, pursuant to the
Base
Agreement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that no Relevant
Entity has credit ratings at least equal to the Required Ratings
Threshold
of each relevant Rating Agency (such event, a “Required Ratings
Downgrade Event”), then Party A shall, as soon as reasonably
practicable and so long as a Required Ratings Downgrade Event is
in
effect, at its own expense, use commercially reasonable efforts to
procure
either (A) a Permitted Transfer or (B) an Eligible
Guarantee.
|
|
(e)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“Subject
to Section 6(b)(ii), neither Party A nor Party B is permitted to assign, novate
or transfer (whether by way of security or otherwise) as a whole or in part
any
of its rights, obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b) satisfaction
of
the Rating Agency Condition, except that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may transfer or assign this Agreement to any Person, including,
without
limitation, another of Party A’s offices, branches or affiliates (any such
Person, office, branch or affiliate, a “Transferee”) on
at least five Business Days’ prior written notice to Party B and the
Trustee; provided that, with respect to this clause (c), (A) as
of the date of such transfer the Transferee will not be required
to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments
of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement
in
respect of such Tax (B) a Termination Event or Event of Default does
not
occur under this Agreement as a result of such transfer; (C) such
notice
is accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred;
(D) Party A will be responsible for any costs or expenses incurred
in
connection with such transfer and (E) Party A obtains in respect
of such
transfer a written acknowledgement of satisfaction of the Rating
Agency
Condition (except for ▇▇▇▇▇’▇). Party B will execute such
documentation as is reasonably deemed necessary by Party A for the
effectuation of any such transfer.”
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such
transfer.
|
|
(f)
|
Non-Recourse. Party
A acknowledges and agree that, notwithstanding any provision in this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Base Agreement and that Party A will not have
any
recourse to any of the directors, officers, employees, shareholders
or
affiliates of the Party B with respect to any claims, losses, damages,
liabilities, indemnities or other obligations in connection with
any
transactions contemplated hereby. In the event that the Trust and
the
proceeds thereof should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and
the
proceeds thereof, any claims against or obligations of Party B under
the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not
revive. The Trustee shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Trust from the Trust
created pursuant to the Base Agreement. This provision will
survive the termination of this
Agreement.
|
|
(g)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such designation
or transfer.
|
|
(h)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set
off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
|
|
(i)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Rating Agencies has been provided
prior
written notice of the same and such amendment satisfies the Rating
Agency
Condition with respect to S&P, Fitch and
DBRS.
|
|
(j)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Rating
Agency notice of such event or condition; provided that failure to
provide
notice of such event or condition pursuant to this Part 5(j) shall
not
constitute an Event of Default or a Termination Event. With
respect to Party B, delivery of such notice shall not be required
unless a
Responsible Officer (as defined in the Base Agreement) has written
notice
or actual knowledge of such event or
condition.
|
|
(k)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Trust, or the trust formed pursuant to the Base Agreement,
in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy
or
similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will
preclude,
or be deemed to stop, Party A (i) from taking any action prior to
the
expiration of the aforementioned one year and one day period, or
if longer
the applicable preference period then in effect, in (A) any case
or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person
other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding. This provision will survive the termination of this
Agreement.
|
|
(l)
|
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by U.S. Bank National Association (“U.S. Bank”) not
in its individual capacity, but solely as Trustee of the Charming
Shoppes
Master Trust created pursuant to the Base Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder; (b)
U.S.
Bank has been directed pursuant to the Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of U.S.
Bank
but is made and intended for the purpose of binding only Charming
Shoppes
Master Trust; and (d) under no circumstances shall U.S. Bank in its
individual capacity be personally liable for any payments hereunder
or for
the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken under this
Agreement.
|
|
(m)
|
Severability. If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(n)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing, and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(o)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(p)
|
Regarding
Party A. Party B acknowledges and agrees that Party A,
in its capacity as swap provider, has had and will have no involvement
in
and, accordingly Party A accepts no responsibility for: (i) the
establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) the preparation of or passing on the
disclosure and other information (other than disclosure and information
furnished by Party A) contained in any offering circular for the
Certificates, the Base Agreement, or any other agreements or documents
used by Party B or any other party in connection with the marketing
and
sale of the Certificates; (vi) the ongoing operations and administration
of Party B, including the furnishing of any information to Party
B which
is not specifically required under this Agreement; or (vii) any other
aspect of Party B’s existence.
|
|
(q)
|
Rating
Agency Requirements. Notwithstanding anything to
the contrary herein, to the extent any Rating Agency does not assign
a
rating to the notes or certificates, as applicable, issued pursuant
to the
Base Agreement, references to the requirements of such Rating Agency
herein shall be ignored for purposes of this
Agreement.
|
|
(r)
|
Transfer
or Restructuring to Avoid Termination Event. Section
6(b)(ii) of the Agreement shall be amended in its entirety to read
as
follows: If either an Illegality under Section 5(b)(i)(1), a Tax
Event
occurs and there is only one Affected Party, or if a Tax Event Upon
Merger
occurs and the Burdened Party is the Affected Party, the Affected
Party
will, as a condition to its right to designate an Early Termination
Date
under Section 6(b)(iv), within 20 days after it gives notice under
Section
6(b)(i), use all reasonable efforts (which will not require such
party to
incur a loss, excluding immaterial, incidental expenses) to
(A) transfer all its rights and obligations under this
Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist
or
(B) replace the Affected Transaction(s) with one or more economically
equivalent transactions so that such Termination Event ceases to
exist.
|
|
|
If
the Affected Party is not able to cause such a transfer or restructuring
it will give notice to the other party to that effect within such
20 day
period, whereupon the other party may effect such a transfer or cause
such
a restructuring within 30 days after the notice is given under Section
6(b)(i).
|
|
|
Any
transfer by a party under this Section 6(b)(ii) will be subject to
and
conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party’s policies in effect at
such time would permit it to enter into transactions with the transferee
on the terms proposed. Any restructuring by a party under this
Section 6(b)(ii) will be subject to and conditional upon the satisfaction
of the Rating Agency Condition and the prior written consent of the
other
party, which consent shall not unreasonably be
withheld.
|
|
(s)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold, the Moody’s First Trigger Ratings Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a), (b),
(c) and (d) of the definition of Permitted Transfer (as determined by Party
B in
accordance with the Base Agreement) if such entity were a Transferee, as defined
in the definition of Permitted Transfer.
“DBRS”
means Dominion Bond Rating Service, or any successor thereto.
“DBRS
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “AA(low)” and a short-term
unsecured and unsubordinated debt rating from DBRS of
“R-1(middle)”.
“DBRS
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from DBRS at least equal to the DBRS Required Ratings
Threshold.
“DBRS
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “BBB”.
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations of Party A under this Agreement (or, solely
for
purposes of the definition of Eligible Replacement, all present and future
obligations of such Eligible Replacement under this Agreement or its
replacement, as applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency Condition with
respect to S&P, Fitch and DBRS, and either (A) a law firm has given a legal
opinion confirming that none of the guarantor’s payments to Party B under such
guarantee will be subject to deduction or Tax collected by withholding, or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to deduction or Tax collected by withholding, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required, or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Replacement” means an entity (A) (I) (x) which has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or (y) all
present and future obligations of which entity owing to Party B under this
Agreement (or its replacement, as applicable) are guaranteed pursuant to an
Eligible Guarantee provided by a guarantor with credit ratings from S&P at
least equal to the S&P Required Ratings Threshold, in either case if S&P
is a Rating Agency, (II) (x) which has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold or (y) all present and
future obligations of which entity owing to Party B under this Agreement (or
its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if ▇▇▇▇▇’▇ is a Rating
Agency, (III) (x) which has credit ratings from Fitch at least equal to the
applicable Fitch Approved Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Fitch at least equal to the
Fitch Approved Ratings Threshold, in either case if Fitch is a Rating Agency,
and (IV) (x) which has credit ratings from DBRS at least equal to the applicable
DBRS Approved Ratings Threshold or (y) all present and future obligations of
which entity owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee provided by a
guarantor with credit ratings from DBRS at least equal to the DBRS Approved
Ratings Threshold, in either case if DBRS is a Rating Agency, and (B) that
has
executed or agrees to execute a Regulation AB indemnification agreement, if
applicable.
|
|
“Financial
Institution” means a bank, broker/dealer, insurance company,
structured investment company or derivative product
company.
|
“Firm
Offer” means a quotation from an Eligible Replacement (i) in an
amount equal to the actual amount payable by or to Party B in consideration
of
an agreement between Party B and such Eligible Replacement to replace Party
A as
the counterparty to this Agreement by way of novation or, if such novation
is
not possible, an agreement between Party B and such Eligible Replacement to
enter into a Replacement Transaction (assuming that all Transactions hereunder
become Terminated Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to this Agreement
or
enter a Replacement Transaction that will become legally binding upon such
Eligible Replacement upon acceptance by Party B.
“Fitch”
means Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “A” and a short-term
unsecured and unsubordinated debt rating from Fitch of “F1”.
“Fitch
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Required Ratings
Threshold.
“Fitch
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “BBB-”.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A3” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-2”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody’s, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody’s of
“A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s
rights, liabilities, duties and obligations under this Agreement, with respect
to which transfer each of the following conditions is satisfied: (a)
the Transferee is an Eligible Replacement that is a recognized dealer in
interest rate swaps; (b) as of the date of such transfer the Transferee would
not be required to withhold or deduct on account of Tax from any payments under
this Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (c) an Event of Default or Termination Event would not occur as
a
result of such transfer (d) pursuant to a written instrument (the “Transfer
Agreement”); the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction; (e) such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (f) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (g) Moody’s has been given prior written notice
of such transfer and the Rating Agency Condition (other than with respect to
▇▇▇▇▇’▇) is satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
“Rating
Agencies” means, with respect to any date of determination, each
of S&P, ▇▇▇▇▇’▇, Fitch and DBRS, to the extent that each such
rating agency is then providing a rating for any of the related notes or
certificates, as applicable.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Rating Agency specified in connection
with such proposed act or omission, that the party proposing such act or failure
to act must consult with each of the specified Rating Agencies and receive
from
each such Rating Agency prior written confirmation that the proposed action
or
inaction would not cause a downgrade or withdrawal of the then-current rating
of
any Certificates or Notes.
“Relevant
Entity” means Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date, and (ii)
has terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold, the Moody’s Second Trigger Ratings Threshold, the Fitch Required
Ratings Threshold and the DBRS Required Ratings Threshold.
“S&P”
means Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating of “A-1” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating of “A+” from S&P.
“S&P
Required Ratings Downgrade Event” means that
no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, (I) if such
entity is a Financial Institution, a short-term unsecured and unsubordinated
debt rating of “A-2” from S&P, or, if such entity does not have a short-term
unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “BBB+” from S&P, or
(II) if such entity is not a Financial Institution, a short-term unsecured
and
unsubordinated debt rating of “A-1” from S&P, or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating or counterparty rating of
“A+” from S&P.
[Remainder
of this page intentionally left blank.]
The
time
of dealing will be confirmed by Party A upon written
request. Barclays is regulated by the Financial Services
Authority. Barclays is acting for its own account in respect of this
Transaction.
Please
confirm that the foregoing correctly sets forth all the terms and conditions
of
our agreement with respect to the Transaction by responding within three (3)
Business Days by promptly signing in the space provided below and both (i)
faxing the signed copy to Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global Operations, Fax
▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the
signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not
affect the validity or enforceability of the Transaction against
you. This facsimile shall be the only documentation in respect of the
Transaction and accordingly no hard copy versions of this Confirmation for
this
Transaction shall be provided unless Party B requests such a copy.
|
For
and on behalf of
BARCLAYS
BANK PLC
|
For
and on behalf of
U.S.
BANK NATIONAL ASSOCIATION, NOT
IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY
AS
TRUSTEE OF CHARMING SHOPPES
MASTER
TRUST
|
|
Name: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
Date:
|
Name: /s/
Ta_____ ▇▇▇▇▇▇-______
Title: Vice
President
Date: 10/17/07
|
Barclays
Bank PLC and its Affiliates, including Barclays Capital Inc., may share with
each other information, including non-public credit information, concerning
its
clients and prospective clients. If you do not want such information
to be shared, you must write to the Director of Compliance, Barclays Bank PLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
SCHEDULE
I
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
|
17-Oct-07
|
1-Nov-07
|
3,562,500.00
|
|
1-Nov-07
|
15-Nov-07
|
718,750.00
|
|
15-Nov-07
|
15-Dec-07
|
586,458.34
|
|
15-Dec-07
|
15-Jan-08
|
454,166.68
|
|
15-Jan-08
|
15-Feb-08
|
321,875.01
|
|
15-Feb-08
|
15-Mar-08
|
218,750.01
|
|
15-Mar-08
|
15-Apr-08
|
115,625.01
|
Annex
A
Paragraph
13 of the Credit Support Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of October 17, 2007 between
Barclays
Bank PLC (hereinafter referred to as “Party A” or
“Pledgor”)
and
U.S.
Bank
National Association, as Trustee of Charming Shoppes Master Trust
(hereinafter
referred to as “Party B” or “Secured
Party”).
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
|
|
Paragraph
13. Elections and
Variables.
|
|
(a)
|
Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
|
(A)
|
“Delivery
Amount” has the meaning specified in
Paragraph 3(a), except that:
|
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation Date”,
and
|
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall be deleted in its entirety and replaced
with the following:
|
“The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greatest of
|
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Credit Support Amount for such Valuation
Date exceeds (b) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Credit Support Amount for such Valuation
Date exceeds (b) the Fitch Value, as of such Valuation Date, of all
Posted
Credit Support held by the Secured
Party.”
|
|
|
(B)
|
“Return
Amount” has the meaning specified in Paragraph 3(b), except
that:
|
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the least of
|
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation
Date,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Moody’s
Credit Support Amount for such Valuation Date,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Value, as of such Valuation Date, of
all
Posted Credit Support held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation
Date.”
|
|
|
(C)
|
“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation
Date,
reference shall be made to the S&P Credit Support Amount, the Moody’s
Credit Support Amount, or the Fitch Credit Support Amount, in each
case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
(ii)
|
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral” (for the avoidance of doubt, all Eligible Collateral
to be denominated in USD):
|
Collateral
|
S&P
Approved Ratings Valuation Percentage
|
S&P
Required Ratings Valuation Percentage
|
Moody's
First Trigger Valuation Percentage
|
Moody's
Second Trigger Valuation Percentage
|
Fitch
& DBRS Valuation Percentage
|
|
(A)Cash
|
100%
|
80%
|
100%
|
100%
|
100%
|
|
(B)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.9%
|
79.1%
|
100%
|
100%
|
97.5%
|
|
(C)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not more
than
ten years
|
92.6%
|
74.1%
|
100%
|
94%
|
86.3%
|
|
(D)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
N/A
|
N/A
|
100%
|
87%
|
79%
|
Notwithstanding
the Valuation Percentages set forth in the preceding table, upon the first
Transfer of Eligible Collateral under this Annex, the Pledgor may, at the
Pledgor’s expense, agree the Valuation Percentages in relation to (B) through
(D) above with the relevant rating agency (to the extent such rating agency
is
providing a rating for the Certificates), and upon such agreement (as evidenced
in writing), such Valuation Percentages shall supersede those set forth in
the
preceding table.
|
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other Eligible
Support” for the party specified:
Such
Other Eligible Support as the Pledgor may designate; provided, at the expense
of
the Pledgor, the prior written consent of the relevant rating agency (to the
extent such rating agency is providing a rating for the Certificates) shall
have
been obtained. For the avoidance of doubt, there are no items that
qualify as Other Eligible Support as of the date of this Annex.
|
|
(iv)
|
Threshold.
|
|
|
(A)
|
“Independent
Amount” means zero with respect to Party A and Party
B.
|
|
|
(B)
|
“Moody’s
Threshold” means, with respect to Party A and any Valuation
Date, if a Moody's First Trigger Downgrade Event has occurred and
is
continuing and such Moody’s First Trigger Downgrade Event has been
continuing for at least 30 Local Business Days or since this Annex
was
executed, zero; otherwise,
infinity.
|
“S&P
Threshold” means, with respect to Party A and any Valuation Date,
if an S&P Approved Threshold Downgrade Event has occurred and is
continuing and such S&P Approved Threshold Downgrade Event has been
continuing for at least 10 Local Business Days or since this Annex was executed,
zero; otherwise, infinity.
“Fitch
Threshold” means, with respect to Party A and any Valuation Date,
if a Fitch Approved Threshold Downgrade Event has occurred and is continuing
and
such Fitch Approved Threshold Downgrade Event has been continuing for at least
30 calendar days or since this Annex was executed, zero; otherwise,
infinity
|
|
“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
|
|
|
(C)
|
“Minimum
Transfer Amount” means USD 50,000; provided further, with
respect to the Secured Party at any time when the Secured Party is
a
Defaulting Party, “Minimum Transfer Amount”
means zero.
|
|
|
(D)
|
Rounding: The
Delivery Amount will be rounded up and the Return Amount will be
rounded
down to the nearest integral multiple of USD
1000.
|
|
(c)
|
Valuation
and Timing.
|
|
|
(i)
|
“Valuation
Agent” means Party A. The Valuation Agent’s
calculations shall be made in accordance with standard market practices
using commonly accepted third party sources such as Bloomberg or
Reuters.
|
|
|
(ii)
|
“Valuation
Date” means each Local Business
Day.
|
|
|
(iii)
|
“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same
date.
|
|
|
(iv)
|
“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies. The following Termination Events will
be a “Specified Condition” for the party
specified (that party being the Affected Party if the Termination
Event
occurs with respect to that
party): None.
|
|
(e)
|
Substitution.
|
|
|
(i)
|
“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
|
|
|
(ii)
|
Consent. If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
|
(i)
|
“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
|
|
|
(ii)
|
Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value, Moody’s Value, and Fitch Value, on
any date, of Eligible Collateral will be calculated as
follows:
|
For
Eligible Collateral comprised of Cash, the amount of such Cash.
For
Eligible Collateral comprising securities, the sum of (A) the product of (1)(x)
the bid price at the Valuation Time for such securities on the principal
national securities exchange on which such securities are listed, or (y) if
such
securities are not listed on a national securities exchange, the bid price
for
such securities quoted at the Valuation Time by any principal market maker
for
such securities selected by the Valuation Agent, or (z) if no such bid price
is
listed or quoted for such date, the bid price listed or quoted (as the case
may
be) at the Valuation Time for the day next preceding such date on which such
prices were available and (2) the applicable Valuation Percentage for such
Eligible Collateral, and (B) the accrued interest on such securities (except
to
the extent Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or included
in the applicable price referred to in the immediately preceding clause (A))
as
of such date.
|
|
(iii)
|
Alternative. The
provisions of Paragraph 5 will apply; provided, that the obligation
of the
appropriate party to deliver the undisputed amount to the other party
will
not arise prior to the time that would otherwise have applied to
the
Transfer pursuant to, or deemed made, under Paragraph 3 if no dispute
had
arisen.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
|
(i)
|
Eligibility
to Hold Posted Collateral;
Custodians.
|
Party
B
is not and will not be entitled to hold Posted Collateral. Party B's
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b);
provided that the following conditions applicable to it are
satisfied:
|
|
(1)
|
The
Custodian for Party B shall be the same banking institution that
acts as
Trustee for the Certificates.
|
|
|
(2)
|
The
Custodian for Party B shall have a short-term unsecured and unsubordinated
debt rating from S&P of at least “A-1” or, if no short-term rating is
available, a long-term unsecured debt rating from S&P of
“A+.” The Trustee is required to replace the Custodian within
60 calendar days of the Custodian’s rating falling below “A-1,” in the
case of a short-term rating, or “A+,” in the case of a long-term
rating.
|
Initially,
the Custodian for Party B is: to be advised in
writing by Party B to Party A.
|
|
(ii)
|
Use
of Posted Collateral. The provisions of Paragraph
6(c) will not apply to Party B; therefore, Party B will not have
any of
the rights specified in Paragraph 6(c)(i) or 6(c)(ii); provided,
however,
that the Trustee shall invest Cash Posted Credit Support in such
investments as designated by Party A, with losses (net of gains)
incurred
in respect of such investments to be for the account of Party A;
provided
further, that such investments designated by Party A shall be limited
to
money market funds rated “AAAm” or “AAAm-G” by S&P and from which such
invested Cash Posted Credit Support may be withdrawn upon no more
than 2
Local Business Day’s notice of a request for
withdrawal.
|
|
(h)
|
Distributions
and Interest Amount.
|
|
|
(i)
|
Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash pursuant to Paragraph
13(g)(ii).
|
|
|
(ii)
|
Transfer
of Interest Amount. The Transfer of the Interest Amount will
be made on the second Local Business Day following the end of each
calendar month and on any other Local Business Day on which Posted
Collateral in the form of Cash is Transferred to the Pledgor pursuant
to
Paragraph 3(b); provided, however, that the obligation of Party B
to
Transfer any Interest Amount to Party A shall be limited to the extent
that Party B has earned and received such funds and such funds are
available to Party B.
|
|
|
(iii)
|
Alternative
to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
|
|
(i)
|
Additional
Representation(s). There are no additional
representations by either party.
|
|
(j)
|
Other
Eligible Support and Other Posted
Support.
|
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
(k)
|
Demands
and Notices. All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to
or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance with
the
terms of this paragraph) to the other
party:
|
If
to
Party A:
▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇,
England
Attention: Swaps
Documentation
Facsimile
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6858
Telephone
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6904
with
a
copy to:
General
Counsel’s Office
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Notices
to Party A shall not be deemed effective unless delivered to the London
address
set forth above.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: to be provided in writing to Party
A.
|
(l)
|
Address
for Transfers. Each Transfer hereunder shall be
made to the address specified in writing from time to time by the
party to
which such Transfer will be made.
|
|
(m)
|
Other
Provisions.
|
|
|
(i)
|
Collateral
Account. The Secured Party shall cause any
Custodian appointed hereunder to open and maintain a segregated trust
account and to hold, record and identify all the Posted Collateral
in such
segregated trust account and, subject to Paragraph 8(a), such Posted
Collateral shall at all times be and remain the property of the Pledgor
and shall at no time constitute the property of, or be commingled
with the
property of, the Secured Party or the
Custodian.
|
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (a) the term “Secured Party” as used in this Annex means only
Party B, (b) the term “Pledgor” as used in this Annex means only Party A,
(c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
|
(iii)
|
Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, Fitch Value”. Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words “a Value” and inserting in lieu thereof
“an S&P Value, a ▇▇▇▇▇’▇ Value, and a Fitch Value” and (B) deleting
the words “the Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, and Fitch Value”. Paragraph 5 (flush language)
is hereby amended by deleting the word “Value” and inserting in lieu
thereof “S&P Value, ▇▇▇▇▇’▇ Value, or Fitch
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, and Fitch Value”. Paragraph 5(i)(C) is hereby
amended by deleting the word “the Value, if” and inserting in lieu thereof
“any one or more of the S&P Value, ▇▇▇▇▇’▇ Value, or Fitch Value, as
may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, ▇▇▇▇▇’▇ Value, or Fitch Value” and (2)
deleting the second instance of the words “the Value” and inserting in
lieu thereof “such disputed S&P Value, ▇▇▇▇▇’▇ Value, or Fitch
Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, ▇▇▇▇▇’▇ Value or Fitch
Value”.
|
|
|
(iv)
|
Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
|
|
|
(v)
|
Events
of Default. Paragraph 7 will not apply to cause
any Event of Default to exist with respect to Party B except that
Paragraph 7(i) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support
Annex. Notwithstanding anything to the contrary in Paragraph 7,
any failure by Party A to comply with or perform any obligation to
be
complied with or performed by Party A under the Credit Support Annex
shall
only be an Event of Default if (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade
Event has occurred and been continuing for 30 or more Local Business
Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, (C) a Fitch Required
Ratings Downgrade Event has occurred and been continuing for 30 or
more
days, or (D) a DBRS Required Ratings Downgrade Event has occurred
and been
continuing for 30 or more days.
|
|
|
(vi)
|
Expenses. Notwithstanding
anything to the contrary in Paragraph 10, the Pledgor will be responsible
for, and will reimburse the Secured Party for, all transfer and other
taxes and other costs involved in any Transfer of Eligible
Collateral.
|
|
|
(vii)
|
Withholding. Paragraph
6(d)(ii) is hereby amended by inserting immediately after “the Interest
Amount” in the fourth line thereof the words “less any
applicable withholding taxes.”
|
|
|
(viii)
|
Additional
Definitions. As used in this
Annex:
|
“Exposure”
has the meaning specified in Paragraph 12, except that (1) after the word
“Agreement” the words “(assuming, for this purpose only, that Part
1(f)(i)(A)-(E) of the Schedule is deleted)” shall be inserted and (2) at the end
of the definition of Exposure, the words “with terms that are, in all material
respects, no less beneficial for Party B than those of this Agreement” shall be
added.
“Fitch
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Approved Ratings
Threshold.
“Fitch
Credit Support Amount” means, for any Valuation Date,
|
|
(A)
|
if
the Fitch Threshold for such Valuation Date is zero, an amount equal
to
the sum of (1) the Secured Party’s Exposure and (2) the sum, for each
Transaction, of the product of (a) the Fitch Volatility Cushion for
such
Transaction and (b) the Notional Amount of such
Transaction for the Calculation Period which includes such Valuation
Date,
or
|
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“Fitch
Valuation Percentage” means, for any Valuation Date and each item
of Eligible Collateral, if the Fitch Threshold for such Valuation Date is zero,
the corresponding percentage for such Eligible Collateral in the column headed
“Fitch Valuation Percentage”.
“Fitch
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the Fitch Valuation
Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii). The Fitch Value of Cash will be the amount of such
Cash.
“Fitch
Volatility Cushion” means, for any Transaction, the related
percentage set forth in the following table:
|
Remaining
Weighted Average Maturity of Transaction
(years)
|
||||||||||||||||||||||||||||||||||||||||
|
Rating
of Most Senior Class of Certificates Outstanding on
Valuation
Date
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
||||||||||||||||||||||||||||||
|
At
least “AA-”
|
0.6 | % | 1.6 | % | 2.6 | % | 3.4 | % | 4.2 | % | 4.8 | % | 5.5 | % | 5.9 | % | 6.4 | % | 7.0 | % | ||||||||||||||||||||
|
“A+/A”
|
0.3 | % | 0.8 | % | 1.3 | % | 1.7 | % | 2.1 | % | 2.4 | % | 2.8 | % | 3.0 | % | 3.3 | % | 3.6 | % | ||||||||||||||||||||
|
“A-/BBB+”
or lower
|
0.2 | % | 0.6 | % | 1.0 | % | 1.3 | % | 1.6 | % | 1.9 | % | 2.1 | % | 2.3 | % | 2.5 | % | 2.7 | % | ||||||||||||||||||||
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the parties
for
the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible
Collateral for which delivery is contemplated by other means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“▇▇▇▇▇’▇
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and it is not the
case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for at least 30 Local Business Days, an amount
equal
to the greater of (x) zero and (y) the sum of the Secured Party’s Exposure
and the aggregate of ▇▇▇▇▇’▇ First Trigger Additional Amounts for each
Transaction and such Valuation
Date;
|
|
|
(B)
|
if
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, an amount equal to
the
greatest of (x) zero, (y) the aggregate amount of the Next Payments
for
each Transaction and such Valuation Date, and (z) the sum of the
Secured
Party’s Exposure and the aggregate of ▇▇▇▇▇’▇ Second Trigger Additional
Amounts for each Transaction and such Valuation Date;
or
|
|
|
(C)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is infinity,
zero.
|
“▇▇▇▇▇’▇
First Trigger Additional Amount” means, for
any Valuation Date and any Transaction, the product of (i) the applicable
▇▇▇▇▇’▇ First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date.
“▇▇▇▇▇’▇
First Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from ▇▇▇▇▇’▇ at least equal to the ▇▇▇▇▇’▇ First Trigger Ratings
Threshold.
“▇▇▇▇▇’▇
Second Trigger Additional Amount” means, for any Valuation Date
and any Transaction,
|
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the product
of (i)
the applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 2, (ii)
the Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the product of
(i) the
applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 3, (ii) the
Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
|
“▇▇▇▇▇’▇
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the ▇▇▇▇▇'▇ Threshold for such
Valuation Date is zero and it is not the case that a ▇▇▇▇▇’▇ Second Trigger
Downgrade Event has occurred and been continuing for at least 30
Local Business Days, the corresponding percentage for such Eligible Collateral
in the column headed “▇▇▇▇▇’▇ First Trigger Valuation Percentage” or (ii) if a
▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “▇▇▇▇▇’▇ Second
Trigger Valuation Percentage”.
“▇▇▇▇▇’▇
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent and (y) the applicable ▇▇▇▇▇’▇ Valuation Percentage set forth in
Paragraph 13(b)(ii). The ▇▇▇▇▇’▇ Value of Cash will be the amount of such
Cash.
“Next
Payment” means, for each Transaction and each Valuation Date, the
greater of (i) the aggregate amount of any payments due to be made by Party
A
under Section 2(a) in respect of such Transaction on the related Next Payment
Date less the aggregate amount of any payments due to be made by Party B under
Section 2(a) on such Next Payment Date (any such payments determined based
on
rates prevailing on such Valuation Date) and (ii) zero.
“Next
Payment Date” means, for each Transaction, the date on which the
next scheduled payment under such Transaction is due to be paid.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved Ratings
Threshold.
“S&P
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the Secured Party’s Exposure;
|
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
125% of
the Secured Party’s Exposure; or
|
|
|
(C)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the S&P Threshold for such
Valuation Date is zero and it is not the case that a S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business
Days, the corresponding percentage for such Eligible Collateral in the column
headed “S&P Approved Ratings Valuation Percentage” or (ii) if an S&P
Required Ratings Downgrade Event has occurred and been continuing for at least
10 Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed “S&P Required Ratings Valuation
Percentage”.
“S&P
Value” means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the Valuation Agent
for
such Eligible Collateral and (y) the applicable S&P Valuation Percentage for
such Eligible Collateral set forth in paragraph 13(b)(ii).
“Transaction-Specific
Hedge” means any Transaction in respect of which (x) the notional
amount is “balance guaranteed” or (y) the notional amount for any Calculation
Period (as defined in the related Confirmation) otherwise is not a specific
dollar amount that is fixed at the inception of the Transaction.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value, ▇▇▇▇▇’▇ Value and Fitch Value with respect to any Eligible Collateral or
Posted Collateral, the applicable S&P Valuation Percentage, ▇▇▇▇▇’▇
Valuation Percentage, or Fitch Valuation Percentage for such Eligible Collateral
or Posted Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
“Value”
shall mean, in respect of any date, the related S&P Value, the related
▇▇▇▇▇’▇ Value, and the related Fitch Value.
[Remainder
of this page intentionally left blank]
Table
1
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
First Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
First Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.15%
|
1.10%
|
|
Greater
than 1 but less than or equal to 2
|
0.30%
|
1.20%
|
|
Greater
than 2 but less than or equal to 3
|
0.40%
|
1.30%
|
|
Greater
than 3 but less than or equal to 4
|
0.60%
|
1.40%
|
|
Greater
than 4 but less than or equal to 5
|
0.70%
|
1.50%
|
|
Greater
than 5 but less than or equal to 6
|
0.80%
|
1.60%
|
|
Greater
than 6 but less than or equal to 7
|
1.00%
|
1.60%
|
|
Greater
than 7 but less than or equal to 8
|
1.10%
|
1.70%
|
|
Greater
than 8 but less than or equal to 9
|
1.20%
|
1.80%
|
|
Greater
than 9 but less than or equal to 10
|
1.30%
|
1.90%
|
|
Greater
than 10 but less than or equal to 11
|
1.40%
|
1.90%
|
|
Greater
than 11 but less than or equal to 12
|
1.50%
|
2.00%
|
|
Greater
than 12 but less than or equal to 13
|
1.60%
|
2.10%
|
|
Greater
than 13 but less than or equal to 14
|
1.70%
|
2.10%
|
|
Greater
than 14 but less than or equal to 15
|
1.80%
|
2.20%
|
|
Greater
than 15 but less than or equal to 16
|
1.90%
|
2.30%
|
|
Greater
than 16 but less than or equal to 17
|
2.00%
|
2.30%
|
|
Greater
than 17 but less than or equal to 18
|
2.00%
|
2.40%
|
|
Greater
than 18 but less than or equal to 19
|
2.00%
|
2.40%
|
|
Greater
than 19 but less than or equal to 20
|
2.00%
|
2.50%
|
|
Greater
than 20 but less than or equal to 21
|
2.00%
|
2.50%
|
|
Greater
than 21 but less than or equal to 22
|
2.00%
|
2.50%
|
|
Greater
than 22 but less than or equal to 23
|
2.00%
|
2.50%
|
|
Greater
than 23 but less than or equal to 24
|
2.00%
|
2.50%
|
|
Greater
than 24 but less than or equal to 25
|
2.00%
|
2.50%
|
|
Greater
than 25 but less than or equal to 26
|
2.00%
|
2.50%
|
|
Greater
than 26 but less than or equal to 27
|
2.00%
|
2.50%
|
|
Greater
than 27 but less than or equal to 28
|
2.00%
|
2.50%
|
|
Greater
than 28 but less than or equal to 29
|
2.00%
|
2.50%
|
|
Greater
than 29
|
2.00%
|
2.50%
|
Table
2
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
Swaps
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency Swaps
|
|
Equal
to or less than 1
|
0.50%
|
6.10%
|
|
Greater
than 1 but less than or equal to 2
|
1.00%
|
6.30%
|
|
Greater
than 2 but less than or equal to 3
|
1.50%
|
6.40%
|
|
Greater
than 3 but less than or equal to 4
|
1.90%
|
6.60%
|
|
Greater
than 4 but less than or equal to 5
|
2.40%
|
6.70%
|
|
Greater
than 5 but less than or equal to 6
|
2.80%
|
6.80%
|
|
Greater
than 6 but less than or equal to 7
|
3.20%
|
7.00%
|
|
Greater
than 7 but less than or equal to 8
|
3.60%
|
7.10%
|
|
Greater
than 8 but less than or equal to 9
|
4.00%
|
7.20%
|
|
Greater
than 9 but less than or equal to 10
|
4.40%
|
7.30%
|
|
Greater
than 10 but less than or equal to 11
|
4.70%
|
7.40%
|
|
Greater
than 11 but less than or equal to 12
|
5.00%
|
7.50%
|
|
Greater
than 12 but less than or equal to 13
|
5.40%
|
7.60%
|
|
Greater
than 13 but less than or equal to 14
|
5.70%
|
7.70%
|
|
Greater
than 14 but less than or equal to 15
|
6.00%
|
7.80%
|
|
Greater
than 15 but less than or equal to 16
|
6.30%
|
7.90%
|
|
Greater
than 16 but less than or equal to 17
|
6.60%
|
8.00%
|
|
Greater
than 17 but less than or equal to 18
|
6.90%
|
8.10%
|
|
Greater
than 18 but less than or equal to 19
|
7.20%
|
8.20%
|
|
Greater
than 19 but less than or equal to 20
|
7.50%
|
8.20%
|
|
Greater
than 20 but less than or equal to 21
|
7.80%
|
8.30%
|
|
Greater
than 21 but less than or equal to 22
|
8.00%
|
8.40%
|
|
Greater
than 22 but less than or equal to 23
|
8.00%
|
8.50%
|
|
Greater
than 23 but less than or equal to 24
|
8.00%
|
8.60%
|
|
Greater
than 24 but less than or equal to 25
|
8.00%
|
8.60%
|
|
Greater
than 25 but less than or equal to 26
|
8.00%
|
8.70%
|
|
Greater
than 26 but less than or equal to 27
|
8.00%
|
8.80%
|
|
Greater
than 27 but less than or equal to 28
|
8.00%
|
8.80%
|
|
Greater
than 28 but less than or equal to 29
|
8.00%
|
8.90%
|
|
Greater
than 29
|
8.00%
|
9.00%
|
Table
3
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.65%
|
6.30%
|
|
Greater
than 1 but less than or equal to 2
|
1.30%
|
6.60%
|
|
Greater
than 2 but less than or equal to 3
|
1.90%
|
6.90%
|
|
Greater
than 3 but less than or equal to 4
|
2.50%
|
7.10%
|
|
Greater
than 4 but less than or equal to 5
|
3.10%
|
7.40%
|
|
Greater
than 5 but less than or equal to 6
|
3.60%
|
7.70%
|
|
Greater
than 6 but less than or equal to 7
|
4.20%
|
7.90%
|
|
Greater
than 7 but less than or equal to 8
|
4.70%
|
8.20%
|
|
Greater
than 8 but less than or equal to 9
|
5.20%
|
8.40%
|
|
Greater
than 9 but less than or equal to 10
|
5.70%
|
8.60%
|
|
Greater
than 10 but less than or equal to 11
|
6.10%
|
8.80%
|
|
Greater
than 11 but less than or equal to 12
|
6.50%
|
9.00%
|
|
Greater
than 12 but less than or equal to 13
|
7.00%
|
9.20%
|
|
Greater
than 13 but less than or equal to 14
|
7.40%
|
9.40%
|
|
Greater
than 14 but less than or equal to 15
|
7.80%
|
9.60%
|
|
Greater
than 15 but less than or equal to 16
|
8.20%
|
9.80%
|
|
Greater
than 16 but less than or equal to 17
|
8.60%
|
10.00%
|
|
Greater
than 17 but less than or equal to 18
|
9.00%
|
10.10%
|
|
Greater
than 18 but less than or equal to 19
|
9.40%
|
10.30%
|
|
Greater
than 19 but less than or equal to 20
|
9.70%
|
10.50%
|
|
Greater
than 20 but less than or equal to 21
|
10.00%
|
10.70%
|
|
Greater
than 21 but less than or equal to 22
|
10.00%
|
10.80%
|
|
Greater
than 22 but less than or equal to 23
|
10.00%
|
11.00%
|
|
Greater
than 23 but less than or equal to 24
|
10.00%
|
11.00%
|
|
Greater
than 24 but less than or equal to 25
|
10.00%
|
11.00%
|
|
Greater
than 25 but less than or equal to 26
|
10.00%
|
11.00%
|
|
Greater
than 26 but less than or equal to 27
|
10.00%
|
11.00%
|
|
Greater
than 27 but less than or equal to 28
|
10.00%
|
11.00%
|
|
Greater
than 28 but less than or equal to 29
|
10.00%
|
11.00%
|
|
Greater
than 29
|
10.00%
|
11.00%
|
EXHIBIT
H-2
Form
of Interest Rate Cap Agreement
[Attached]
| Barclays Bank PLC |
| 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ |
| Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ |
|
DATE:
|
October 17, 2007 |
| TO: | U.S. Bank National Association, as Trustee of Charming Shoppes Master Trust |
| ATTENTION: | ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇ |
| TELEPHONE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FACSIMILE: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| FROM: | Barclays Bank PLC |
| SUBJECT: | Fixed Income Derivatives Confirmation |
| REFERENCE NUMBER: | 1995100B |
The
purpose of this long-form confirmation (“Confirmation”) is to
confirm the terms and conditions of the Transaction entered into on the Trade
Date specified below (the “Transaction”) between Barclays Bank
PLC (“Party A”) and U.S. Bank National
Association, as Trustee of Charming Shoppes Master
Trust (“Party B”) created under the Pooling and Servicing
Agreement, dated as of November 25, 1997, as amended (the “Pooling and
Servicing Agreement”) among the Charming Shoppes Receivables Corp.,
Spirit of America, Inc., as servicer (in such capacity, the
“Servicer”), and U.S. Bank National Association, as trustee
(the “Trustee”), as supplemented from time to time prior to the
date hereof, including by the Series 2007-1 Supplement to the Pooling and
Servicing Agreement dated as of October 17, 2007 (the “Series
Supplement”). The Series Supplement and the Pooling and
Servicing Agreement are collectively referred to herein as the “Base
Agreement”. This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms
set forth below and replaces any previous agreement between us with respect
to
the subject matter hereof. Item 2 of this Confirmation constitutes a
“Confirmation” as referred to in the ISDA Master Agreement
(defined below); Item 3 of this Confirmation constitutes a
“Schedule” as referred to in the ISDA Master Agreement; and
Annex A hereto constitutes Paragraph 13 of a Credit Support Annex to the
Schedule.
|
1.
|
The
Confirmation set forth at Item 2 hereof shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992
by the
International Swaps and Derivatives Association, Inc. (the “ISDA
Master Agreement”), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set
forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex
A
hereto (the “Credit Support Annex” and together with this
Confirmation and the ISDA Master Agreement, the
“Agreement”). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed
by
such ISDA Master Agreement.
|
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period on
Schedule I attached hereto.
|
|
Trade
Date:
|
October
12, 2007
|
|
Effective
Date:
|
October
17, 2007
|
|
Termination
Date:
|
September
15, 2017; subject to adjustment in accordance with the Business Day
Convention
|
|
Fixed
Amounts:
|
|
|
Fixed
Amount
Payer:
|
Party
B
|
|
Fixed
Amount Payer
Payment
Date:
|
Effective
Date
|
|
Fixed
Amount:
|
USD
90,000
|
|
Floating
Amounts:
|
|
|
Floating
Rate
Payer:
|
Party
A
|
|
Cap
Rate:
|
10.00%
|
|
Floating
Rate Payer
Period
End Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate Payer
Payment
Dates:
|
The
15th
calendar day of each month during the Term of this Transaction, commencing
November 15, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate
Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
Count
Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York, Philadelphia and Milford, Ohio
|
|
Business
Day
Convention:
|
Following
|
|
Calculation
Agent:
|
Party
A
|
|
Account
Details and Settlement Information:
|
|
|
Payments
to Party
A:
|
Correspondent:
BARCLAYS BANK PLC NEW YORK
FEED:
▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS
SWAPS
Beneficiary
Account: ▇▇▇-▇▇▇▇▇-▇
|
|
Payments
to Party
B:
|
U.S.
Bank National Association
ABA
Number: ▇▇▇▇▇▇▇▇▇
Account
Number: 1731-0332-2058
Reference: Charming
Shoppes/2576000052 (2007-1 Hedge)
Beneficiary
Name: US Bank Structured Fin
Attn: ▇▇▇▇▇▇
▇▇▇
|
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
|
|
For
the purposes of this Agreement:-
|
|
(a)
|
“Specified
Entity” will not apply to Party A or Party B for any
purpose.
|
|
(b)
|
“Specified
Transaction” will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
|
|
(i)
|
The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party
B.
|
|
|
(ii)
|
The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party B; provided, however,
that notwithstanding anything to the contrary in Section
5(a)(ii), any failure by Party A to comply with or perform any obligation
to be complied with or performed by Party A under the Credit Support
Annex
shall not constitute an Event of Default under Section 5(a)(ii) unless
(A)
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days, (B) an S&P Required Ratings
Downgrade Event has occurred and been continuing for 10 or more Local
Business Days, (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days, or (D) a DBRS Required Ratings
Downgrade Event has occurred and been continuing for 30 or more
days.
|
|
|
(iii)
|
The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for 30 or more Local Business Days, (B) an S&P
Required Ratings Downgrade Event has occurred and been continuing
for 10
or more Local Business Days, (C) a Fitch Required Ratings Downgrade
Event
has occurred and been continuing for 30 or more days, or (D) a DBRS
Required Ratings Downgrade Event has occurred and been continuing
for 30
or more days.
|
|
|
(iv)
|
The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
|
|
|
(v)
|
The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
|
|
|
(vi)
|
The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except
that such term shall not include obligations in respect of deposits received
in
the ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent
(3%) of the Shareholders’ Equity of Party A or, if applicable, a guarantor under
an Eligible Guarantee with credit ratings at least equal to the S&P Required
Ratings Threshold, the ▇▇▇▇▇’▇ Second Trigger Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Shareholders’
Equity” means with respect to an entity, at any time, such party’s
shareholders’ equity (on a consolidated basis) determined in accordance with
generally accepted accounting principles in such party’s jurisdiction of
incorporation or organization as at the end of such party’s most recently
completed fiscal year.
|
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B; provided, however, that, for
purposes of applying Section 5(a)(vii) to Party B: (A) Section
5(a)(vii)(2) shall not apply, (B) Section 5(a)(vii)(3) shall not
apply to
any assignment, arrangement or composition that is effected by or
pursuant
to the Base Agreement, (C) Section 5(a)(vii)(4) shall not apply to
a
proceeding instituted, or a petition presented, by Party A or any
of its
Affiliates (notwithstanding anything to the contrary in this Agreement,
for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning
set
forth in Section 14 of the ISDA Master Agreement), (D) Section
5(a)(vii)(6) shall not apply to any appointment that is effected
by or
pursuant to the Base Agreement, or any appointment to which Party
B has
not yet become subject; (E) Section 5(a)(vii) (7) shall not apply;
(F)
Section 5(a)(vii)(8) shall apply only to the extent of any event
which has
an effect analogous to any of the events specified in clauses (1),
(3),
(4), (5) or (6) of Section 5(a)(vii), in each case as modified in
this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not
apply.
|
|
|
(viii)
|
The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
|
|
(d)
|
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
|
|
(i)
|
The
“Illegality” provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
|
|
|
(ii)
|
The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)”, and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
|
(iii)
|
The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that Party
A
shall not be entitled to designate an Early Termination Date by reason
of
a Tax Event upon Merger in respect of which it is the Affected
Party.
|
|
|
(iv)
|
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
|
|
(e)
|
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
|
|
(f)
|
Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
|
|
|
(i)
|
Market
Quotation will apply, provided, however, that, in the event of a
Derivative Provider Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by a Reference Market-maker that
is
an Eligible Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such Reference Market-maker
to enter into a Replacement Transaction, and (3) made on the basis that Unpaid
Amounts in respect of the Terminated Transaction or group of Transactions are
to
be excluded but, without limitation, any payment or delivery that would, but
for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to
be included.
|
|
(B)
|
The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
|
“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
|
|
(a)
|
if,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative) of such
Market Quotation;
|
|
|
(b)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations from Approved Replacements have been communicated to Party
B
and remain capable of becoming legally binding upon acceptance by
Party B,
the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotations (for the avoidance
of
doubt, (i) a Market Quotation expressed as a negative number is lower
than
a Market Quotation expressed as a positive number and (ii) the lower
of
two Market Quotations expressed as negative numbers is the one with
the
largest absolute value); or
|
|
|
(c)
|
if,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotation from
an
Approved Replacement has been communicated to Party B and remains
capable
of becoming legally binding upon acceptance by Party B, Party B’s Loss
(whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.”
|
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
|
“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (II) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that the amounts payable under the immediately preceding
clauses (I) and (II) shall be subject to netting in accordance with Section
2(c)
of this Agreement.”
|
|
(E)
|
At
any time on or before the Early Termination Date at which two or
more
Market Quotations from Approved Replacements have been communicated
to
Party B and remain capable of becoming legally binding upon acceptance
by
Party B, Party B shall be entitled to accept only the lowest of such
Market Quotations (for the avoidance of doubt, (i) a Market Quotation
expressed as a negative number is lower than a Market Quotation expressed
as a positive number and (ii) the lower of two Market Quotations
expressed
as negative numbers is the one with the largest absolute
value).
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(g)
|
“Termination
Currency” means USD.
|
|
(h)
|
Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
|
|
(i)
|
Additional
Amounts Upon Certain Partial
Terminations
|
Party
B
shall have the option to reduce the Notional Amount of this Transaction in
whole
or in part in connection with either (a) a principal payment made on the Class
C
Certificates as a result of the release of funds from the Pre-Funding Account
on
the Lane ▇▇▇▇▇▇ Portfolio Distribution Date pursuant to Section 4.19(b) of
the
Series Supplement (a “Prefunding Reduction”) or (b) payment in full of the Class
C Certificates (“Class C Termination”).
In
the
case of a Prefunding Reduction the parties shall treat the portion of the
Notional Amount of this Transaction reduced in connection therewith as a
Terminated Transaction. In connection with a Class C Termination, the
parties shall treat this Transaction in its entirety as a Terminated
Transaction. Party A shall calculate the Market Quotation for the
Terminated Transaction as set forth below.
“Market
Quotation” means, with respect to a Terminated Transaction, an amount determined
on the basis of quotations from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to Party A
(expressed as a negative number) or by Party A (expressed as a positive number)
in consideration of an agreement between Party A and the quoting Reference
Market-maker to enter into such Terminated Transaction (with the same fixed
and
floating payment rates and remaining term as this Transaction) on the relevant
Payment Date. Party A will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable prior to the relevant Payment Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by
Party A. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard to
the
quotations having the highest and lowest values. If exactly three
such quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer
than three quotations are provided, Party A will determine the Market Quotation
in good faith. Notwithstanding the foregoing, Party A shall be the
sole Reference Market-maker (a) in the case of a Prefunding Reduction, and
(b)
in other circumstances unless (i) the reduction in the aggregate Notional
Amounts of the Transactions between Party A and Party B being terminated at
the
same time is equal to or greater than $50 million, and (ii) the Servicer or
the
Trustee requests that quotations from Reference Market-makers other than Party
A
are utilized.
If
the
amount so determined by Party A in respect of a Terminated Transaction is
negative, Party A shall pay such amount to Party B on the next Local Business
Day. If the amount so determined by Party A in respect of a
Terminated Transaction is positive, no payment will be made by either
party.
|
Part
2.
|
Tax
Matters.
|
|
(a)
|
Tax
Representations.
|
|
|
(i)
|
Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
|
|
None.
|
|
|
(ii)
|
Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
None.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable
Tax” in Section 14 of this Agreement, all Taxes in relation to payments
by
Party A shall be Indemnifiable Taxes unless (i) such Taxes are assessed
directly against Party B and not by deduction or withholding by Party
A or
(ii) arise as a result of a Change in Tax Law (in which case such
Tax
shall be an Indemnifiable Tax only if such Tax satisfies the definition
of
Indemnifiable Tax provided in Section 14). In relation to
payments by Party B, no Tax shall be an Indemnifiable Tax, unless
the Tax
is due to a Change in Tax Law and otherwise satisfies the definition
of
Indemnifiable Tax provided in Section
14.
|
|
Part
3.
|
Agreement
to Deliver Documents.
|
|
(a)
|
For
the purpose of Section 4(a)(i), tax forms, documents, or certificates
to
be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A and Party B
|
Any
form or document required or reasonably requested to allow the other
party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Promptly
upon reasonable demand by the other
party.
|
|
(b)
|
For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support
Document, as the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Promptly
upon request after becoming publicly available
|
Yes
|
|
Party
A
|
Opinions
of counsel to Party A substantially in the form of Exhibit A to this
Confirmation
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
opinion of counsel to Party B reasonably satisfactory to Party
A.
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
executed copy of the Base Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
|
|
Part
4. Miscellaneous.
|
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of this
Agreement:
|
|
|
Address
for notices or communications to Party
A:
|
|
Address:
|
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
|
Facsimile:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
|
Phone:
|
▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
|
(For
all
purposes)
Address
for notices or communications
to Party B:
|
Address:
|
EP—MN—WS3D
|
|
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
|
Structured
Finance—Charming Shoppes 2007-1
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Phone:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
(For
all
purposes)
|
(b)
|
Process
Agent. For the purpose of Section
13(c):
|
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices. The
provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
|
|
Party
A is a Multibranch Party and may act through its London and New York
Offices.
|
|
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is Party A; provided,
however, that if an Event of Default shall have occurred with respect
to
Party A, Party B shall have the right to appoint as Calculation Agent
a
financial institution which would qualify as a Reference Market-maker,
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A.
|
|
(f)
|
Credit
Support Document.
|
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
Party
B:
|
The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that
the law of the State of New York shall govern their rights and duties
in
whole (including any claim or controversy arising out of or relating
to
this Agreement), without regard to the conflict of law provisions
thereof
other than New York General Obligations Law Sections 5-1401 and
5-1402.
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) will
apply to each Transaction
hereunder.
|
|
(j)
|
Affiliate. “Affiliate”
shall have the meaning assigned thereto in Section 14; provided,
however,
that Party B shall be deemed to have no Affiliates for purposes of
this
Agreement, including for purposes of Section
6(b)(ii).
|
|
Part
5.
|
Other
Provisions.
|
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Base
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Base
Agreement) or to a “Section” “of this Agreement” will be construed as a
reference to a Section of the ISDA Master Agreement; each herein reference
to a
“Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
|
(b)
|
Amendments
to ISDA Master Agreement.
|
|
|
(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
|
|
|
(ii)
|
Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof: “to another account in the same legal and tax jurisdiction as the
original account”.
|
|
|
(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
|
“(g) Relationship
Between Parties.
|
|
(1)
|
Non-Reliance. It
is acting for its own account, and it has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation
to
enter into that Transaction, it being understood that information
and
explanations related to the terms and conditions of a Transaction
will not
be considered investment advice or a recommendation to enter into
that
Transaction. No communication (written or oral) received from
the other party will be deemed to be an assurance or guarantee as
to the
expected results of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(2)
|
Assessment
and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming,
and assumes, the risks of that Transaction. Notwithstanding the
foregoing, the parties understand that the Trustee has been directed
to
enter into that Transaction.
|
|
|
(3)
|
Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
|
|
(4)
|
Status
of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
|
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible contract
participant” as defined in Section 1a(12) of the Commodity Exchange Act,
as amended.”
|
|
|
(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) by deleting the
words “to transfer” and inserting the words “to effect a Permitted
Transfer” in lieu thereof.
|
|
|
(vi)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
First
Rating Trigger Collateral. If Party A has failed to
comply with or perform any obligation to be complied with or performed
by
Party A in accordance with the Credit Support Annex and such failure
has
not given rise to an Event of Default under Section 5(a)(i) or Section
5(a)(iii), then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with
respect to such Additional Termination
Event.
|
|
|
(ii)
|
Second
Rating Trigger Replacement. The occurrence of any
event described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
|
(A)
|
A
▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been continuing
for 30 or more Local Business Days and at least one Eligible Replacement
has made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (on the basis that
paragraphs (i) and (ii) of Part 1(f) (Payments on Early Termination)
apply) and which remains capable of becoming legally binding upon
acceptance.
|
|
|
(B)
|
An
S&P Required Ratings Downgrade Event has occurred and been continuing
for 60 or more calendar days.
|
|
|
(C)
|
A
Fitch Required Ratings Downgrade Event has occurred and been continuing
for 30 or more calendar days.
|
|
|
(D)
|
A
DBRS Required Ratings Downgrade Event has occurred and been continuing
for
30 or more calendar days.
|
|
|
(iii)
|
Amendment
of Base Agreement. If, without the prior written
consent of Party A where such consent is required under the Base
Agreement, an amendment is made to the Base Agreement which amendment
could reasonably be expected to have a material adverse effect on
the
interests of Party A (excluding, for the avoidance of doubt, any
amendment
to the Base Agreement that is entered into solely for the purpose
of
appointing a successor servicer, master servicer, securities
administrator, trustee or other service provider) under this Agreement,
an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(iv)
|
Termination
of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have
been paid in accordance with the terms of the Base Agreement, an
Additional Termination Event shall have occurred with respect to
Party B
and Party B shall be the sole Affected Party with respect to such
Additional Termination Event; provided, however, that notwithstanding
Section 6(b)(iv) of this Agreement, both Party A and Party B shall
have
the right to designate an Early Termination Date in respect of this
Additional Termination Event.
|
|
|
(v)
|
Securitization
Unwind. If a
Securitization Unwind (as hereinafter defined) occurs, an Additional
Termination Event shall have occurred with respect to Party B and
Party B
shall be the sole Affected Party with respect to such Additional
Termination Event; provided, however, that notwithstanding Section
6(b)(iv) of this Agreement, both Party A and Party B shall have the
right
to designate an Early Termination Date in respect of this Additional
Termination Event. The Early Termination Date in respect of
such Additional Termination Event shall be not earlier than the latest
possible date that the amount of a termination payment may be submitted
to
a party exercising a clean-up call in order to be included in the
clean-up
call price. As used herein, “Securitization
Unwind” means notice of the requisite amount of a party’s
intention to exercise its option to purchase the underlying credit
card
receivables pursuant the Base Agreement is given by the Trustee to
certificateholders or noteholders, as applicable, pursuant to the
Base
Agreement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that no Relevant
Entity has credit ratings at least equal to the Required Ratings
Threshold
of each relevant Rating Agency (such event, a “Required Ratings
Downgrade Event”), then Party A shall, as soon as reasonably
practicable and so long as a Required Ratings Downgrade Event is
in
effect, at its own expense, use commercially reasonable efforts to
procure
either (A) a Permitted Transfer or (B) an Eligible
Guarantee.
|
|
(e)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“Subject
to Section 6(b)(ii), neither Party A nor Party B is permitted to assign, novate
or transfer (whether by way of security or otherwise) as a whole or in part
any
of its rights, obligations or interests under the Agreement or any Transaction
without (a) the prior written consent of the other party and (b) satisfaction
of
the Rating Agency Condition, except that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may transfer or assign this Agreement to any Person, including,
without
limitation, another of Party A’s offices, branches or affiliates (any such
Person, office, branch or affiliate, a “Transferee”) on
at least five Business Days’ prior written notice to Party B and the
Trustee; provided that, with respect to this clause (c), (A) as
of the date of such transfer the Transferee will not be required
to
withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments
of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement
in
respect of such Tax (B) a Termination Event or Event of Default does
not
occur under this Agreement as a result of such transfer; (C) such
notice
is accompanied by a written instrument pursuant to which the Transferee
acquires and assumes the rights and obligations of Party A so transferred;
(D) Party A will be responsible for any costs or expenses incurred
in
connection with such transfer and (E) Party A obtains in respect
of such
transfer a written acknowledgement of satisfaction of the Rating
Agency
Condition (except for ▇▇▇▇▇’▇). Party B will execute such
documentation as is reasonably deemed necessary by Party A for the
effectuation of any such transfer.”
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such
transfer.
|
|
(f)
|
Non-Recourse. Party
A acknowledges and agree that, notwithstanding any provision in this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Base Agreement and that Party A will not have
any
recourse to any of the directors, officers, employees, shareholders
or
affiliates of the Party B with respect to any claims, losses, damages,
liabilities, indemnities or other obligations in connection with
any
transactions contemplated hereby. In the event that the Trust and
the
proceeds thereof should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and
the
proceeds thereof, any claims against or obligations of Party B under
the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not
revive. The Trustee shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Trust from the Trust
created pursuant to the Base Agreement. This provision will
survive the termination of this
Agreement.
|
|
(g)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating Agency has been given prior written notice of such designation
or transfer.
|
|
(h)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set
off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
|
|
(i)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Rating Agencies has been provided
prior
written notice of the same and such amendment satisfies the Rating
Agency
Condition with respect to S&P, Fitch and
DBRS.
|
|
(j)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Rating
Agency notice of such event or condition; provided that failure to
provide
notice of such event or condition pursuant to this Part 5(j) shall
not
constitute an Event of Default or a Termination Event. With
respect to Party B, delivery of such notice shall not be required
unless a
Responsible Officer (as defined in the Base Agreement) has written
notice
or actual knowledge of such event or
condition.
|
|
(k)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Trust, or the trust formed pursuant to the Base Agreement,
in any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy
or
similar law for a period of one year (or, if longer, the applicable
preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will
preclude,
or be deemed to stop, Party A (i) from taking any action prior to
the
expiration of the aforementioned one year and one day period, or
if longer
the applicable preference period then in effect, in (A) any case
or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person
other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding. This provision will survive the termination of this
Agreement.
|
|
(l)
|
It
is expressly understood and agreed by the parties hereto that (a)
this
Agreement is executed by U.S. Bank National Association (“U.S. Bank”) not
in its individual capacity, but solely as Trustee of the Charming
Shoppes
Master Trust created pursuant to the Base Agreement in the exercise
of the
powers and authority conferred and invested in it thereunder; (b)
U.S.
Bank has been directed pursuant to the Agreement to enter into this
Agreement and to perform its obligations hereunder; (c) each of the
representations, undertakings and agreements herein made on behalf
of the
Trust is made and intended not as personal representations of U.S.
Bank
but is made and intended for the purpose of binding only Charming
Shoppes
Master Trust; and (d) under no circumstances shall U.S. Bank in its
individual capacity be personally liable for any payments hereunder
or for
the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken under this
Agreement.
|
|
(m)
|
Severability. If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(n)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing, and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(o)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(p)
|
Regarding
Party A. Party B acknowledges and agrees that Party A,
in its capacity as swap provider, has had and will have no involvement
in
and, accordingly Party A accepts no responsibility for: (i) the
establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) the preparation of or passing on the
disclosure and other information (other than disclosure and information
furnished by Party A) contained in any offering circular for the
Certificates, the Base Agreement, or any other agreements or documents
used by Party B or any other party in connection with the marketing
and
sale of the Certificates; (vi) the ongoing operations and administration
of Party B, including the furnishing of any information to Party
B which
is not specifically required under this Agreement; or (vii) any other
aspect of Party B’s existence.
|
|
(q)
|
Rating
Agency Requirements. Notwithstanding anything to
the contrary herein, to the extent any Rating Agency does not assign
a
rating to the notes or certificates, as applicable, issued pursuant
to the
Base Agreement, references to the requirements of such Rating Agency
herein shall be ignored for purposes of this
Agreement.
|
|
(r)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold, the Moody’s First Trigger Ratings Threshold, the Fitch Approved
Ratings Threshold and the DBRS Approved Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a), (b),
(c) and (d) of the definition of Permitted Transfer (as determined by Party
B in
accordance with the Base Agreement) if such entity were a Transferee, as defined
in the definition of Permitted Transfer.
“DBRS”
means Dominion Bond Rating Service, or any successor thereto.
“DBRS
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “AA(low)” and a short-term
unsecured and unsubordinated debt rating from DBRS of
“R-1(middle)”.
“DBRS
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from DBRS at least equal to the DBRS Required Ratings
Threshold.
“DBRS
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from DBRS of “BBB”.
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations of Party A under this Agreement (or, solely
for
purposes of the definition of Eligible Replacement, all present and future
obligations of such Eligible Replacement under this Agreement or its
replacement, as applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency Condition with
respect to S&P, Fitch and DBRS, and either (A) a law firm has given a legal
opinion confirming that none of the guarantor’s payments to Party B under such
guarantee will be subject to deduction or Tax collected by withholding, or
(B)
such guarantee provides that, in the event that any of such guarantor’s payments
to Party B are subject to deduction or Tax collected by withholding, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required, or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Replacement” means an entity (A) (I) (x) which has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or (y) all
present and future obligations of which entity owing to Party B under this
Agreement (or its replacement, as applicable) are guaranteed pursuant to an
Eligible Guarantee provided by a guarantor with credit ratings from S&P at
least equal to the S&P Required Ratings Threshold, in either case if S&P
is a Rating Agency, (II) (x) which has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold or (y) all present and
future obligations of which entity owing to Party B under this Agreement (or
its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if ▇▇▇▇▇’▇ is a Rating
Agency, (III) (x) which has credit ratings from Fitch at least equal to the
applicable Fitch Approved Ratings Threshold or (y) all present and future
obligations of which entity owing to Party B under this Agreement (or its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Fitch at least equal to the
Fitch Approved Ratings Threshold, in either case if Fitch is a Rating Agency,
and (IV) (x) which has credit ratings from DBRS at least equal to the applicable
DBRS Approved Ratings Threshold or (y) all present and future obligations of
which entity owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee provided by a
guarantor with credit ratings from DBRS at least equal to the DBRS Approved
Ratings Threshold, in either case if DBRS is a Rating Agency, and (B) that
has
executed or agrees to execute a Regulation AB indemnification agreement, if
applicable.
|
|
“Financial
Institution” means a bank, broker/dealer, insurance company,
structured investment company or derivative product
company.
|
“Firm
Offer” means a quotation from an Eligible Replacement (i) in an
amount equal to the actual amount payable by or to Party B in consideration
of
an agreement between Party B and such Eligible Replacement to replace Party
A as
the counterparty to this Agreement by way of novation or, if such novation
is
not possible, an agreement between Party B and such Eligible Replacement to
enter into a Replacement Transaction (assuming that all Transactions hereunder
become Terminated Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to this Agreement
or
enter a Replacement Transaction that will become legally binding upon such
Eligible Replacement upon acceptance by Party B.
“Fitch”
means Fitch Ratings Ltd., or any successor thereto.
“Fitch
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “A” and a short-term
unsecured and unsubordinated debt rating from Fitch of “F1”.
“Fitch
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Required Ratings
Threshold.
“Fitch
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating from Fitch of “BBB-”.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A3” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-2”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody’s, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody’s of
“A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s
rights, liabilities, duties and obligations under this Agreement, with respect
to which transfer each of the following conditions is satisfied: (a)
the Transferee is an Eligible Replacement that is a recognized dealer in
interest rate swaps; (b) as of the date of such transfer the Transferee would
not be required to withhold or deduct on account of Tax from any payments under
this Agreement or would be required to gross up for such Tax under Section
2(d)(i)(4); (c) an Event of Default or Termination Event would not occur as
a
result of such transfer (d) pursuant to a written instrument (the “Transfer
Agreement”); the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction; (e) such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (f) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any replacement cost of entering
into a replacement transaction); (g) Moody’s has been given prior written notice
of such transfer and the Rating Agency Condition (other than with respect to
▇▇▇▇▇’▇) is satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
“Rating
Agencies” means, with respect to any date of determination, each
of S&P, ▇▇▇▇▇’▇, Fitch and DBRS, to the extent that each such
rating agency is then providing a rating for any of the related notes or
certificates, as applicable.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Rating Agency specified in connection
with such proposed act or omission, that the party proposing such act or failure
to act must consult with each of the specified Rating Agencies and receive
from
each such Rating Agency prior written confirmation that the proposed action
or
inaction would not cause a downgrade or withdrawal of the then-current rating
of
any Certificates or Notes.
“Relevant
Entity” means Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date, and (ii)
has terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold, the Moody’s Second Trigger Ratings Threshold, the Fitch Required
Ratings Threshold and the DBRS Required Ratings Threshold.
“S&P”
means Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating of “A-1” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating of “A+” from S&P.
“S&P
Required Ratings Downgrade Event” means that
no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, (I) if such
entity is a Financial Institution, a short-term unsecured and unsubordinated
debt rating of “A-2” from S&P, or, if such entity does not have a short-term
unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “BBB+” from S&P, or
(II) if such entity is not a Financial Institution, a short-term unsecured
and
unsubordinated debt rating of “A-1” from S&P, or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating or counterparty rating of
“A+” from S&P.
[Remainder
of this page intentionally left blank.]
The
time
of dealing will be confirmed by Party A upon written
request. Barclays is regulated by the Financial Services
Authority. Barclays is acting for its own account in respect of this
Transaction.
Please
confirm that the foregoing correctly sets forth all the terms and conditions
of
our agreement with respect to the Transaction by responding within three (3)
Business Days by promptly signing in the space provided below and both (i)
faxing the signed copy to Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global Operations, Fax
▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and (ii) mailing
the
signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation, Barclays Capital
Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not
affect the validity or enforceability of the Transaction against
you. This facsimile shall be the only documentation in respect of the
Transaction and accordingly no hard copy versions of this Confirmation for
this
Transaction shall be provided unless Party B requests such a copy.
|
For
and on behalf of
BARCLAYS
BANK PLC
|
For
and on behalf of
U.S.
BANK NATIONAL ASSOCIATION, NOT
IN ITS
INDIVIDUAL CAPACITY, BUT SOLELY
AS
TRUSTEE OF CHARMING SHOPPES
MASTER
TRUST
|
|
Name: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
Date:
|
Name: /s/
Ta_____ ▇▇▇▇▇▇-______
Title: Vice
President
Date: 10/17/07
|
Barclays
Bank PLC and its Affiliates, including Barclays Capital Inc., may share with
each other information, including non-public credit information, concerning
its
clients and prospective clients. If you do not want such information
to be shared, you must write to the Director of Compliance, Barclays Bank PLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
SCHEDULE
I
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
|
17-Oct-07
|
15-Nov-07
|
28,800,000
|
|
15-Nov-07
|
15-Dec-07
|
28,800,000
|
|
15-Dec-07
|
15-Jan-08
|
28,800,000
|
|
15-Jan-08
|
15-Feb-08
|
28,800,000
|
|
15-Feb-08
|
15-Mar-08
|
28,800,000
|
|
15-Mar-08
|
15-Apr-08
|
28,800,000
|
|
15-Apr-08
|
15-May-08
|
28,800,000
|
|
15-May-08
|
15-Jun-08
|
28,800,000
|
|
15-Jun-08
|
15-Jul-08
|
28,800,000
|
|
15-Jul-08
|
15-Aug-08
|
28,800,000
|
|
15-Aug-08
|
15-Sep-08
|
28,800,000
|
|
15-Sep-08
|
15-Oct-08
|
28,800,000
|
|
15-Oct-08
|
15-Nov-08
|
28,800,000
|
|
15-Nov-08
|
15-Dec-08
|
28,800,000
|
|
15-Dec-08
|
15-Jan-09
|
28,800,000
|
|
15-Jan-09
|
15-Feb-09
|
28,800,000
|
|
15-Feb-09
|
15-Mar-09
|
28,800,000
|
|
15-Mar-09
|
15-Apr-09
|
28,800,000
|
|
15-Apr-09
|
15-May-09
|
28,800,000
|
|
15-May-09
|
15-Jun-09
|
28,800,000
|
|
15-Jun-09
|
15-Jul-09
|
28,800,000
|
|
15-Jul-09
|
15-Aug-09
|
28,800,000
|
|
15-Aug-09
|
15-Sep-09
|
28,800,000
|
|
15-Sep-09
|
15-Oct-09
|
28,800,000
|
|
15-Oct-09
|
15-Nov-09
|
28,800,000
|
|
15-Nov-09
|
15-Dec-09
|
28,800,000
|
|
15-Dec-09
|
15-Jan-10
|
28,800,000
|
|
15-Jan-10
|
15-Feb-10
|
28,800,000
|
|
15-Feb-10
|
15-Mar-10
|
28,800,000
|
|
15-Mar-10
|
15-Apr-10
|
28,800,000
|
|
15-Apr-10
|
15-May-10
|
28,800,000
|
|
15-May-10
|
15-Jun-10
|
28,800,000
|
|
15-Jun-10
|
15-Jul-10
|
28,800,000
|
|
15-Jul-10
|
15-Aug-10
|
28,800,000
|
|
15-Aug-10
|
15-Sep-10
|
28,800,000
|
|
15-Sep-10
|
15-Oct-10
|
28,800,000
|
|
15-Oct-10
|
15-Nov-10
|
28,800,000
|
|
15-Nov-10
|
15-Dec-10
|
28,800,000
|
|
15-Dec-10
|
15-Jan-11
|
28,800,000
|
|
15-Jan-11
|
15-Feb-11
|
28,800,000
|
|
15-Feb-11
|
15-Mar-11
|
28,800,000
|
|
15-Mar-11
|
15-Apr-11
|
28,800,000
|
|
15-Apr-11
|
15-May-11
|
28,800,000
|
|
15-May-11
|
15-Jun-11
|
28,800,000
|
|
15-Jun-11
|
15-Jul-11
|
28,800,000
|
|
15-Jul-11
|
15-Aug-11
|
28,800,000
|
|
15-Aug-11
|
15-Sep-11
|
28,800,000
|
|
15-Sep-11
|
15-Oct-11
|
28,800,000
|
|
15-Oct-11
|
15-Nov-11
|
28,800,000
|
|
15-Nov-11
|
15-Dec-11
|
28,800,000
|
|
15-Dec-11
|
15-Jan-12
|
28,800,000
|
|
15-Jan-12
|
15-Feb-12
|
28,800,000
|
|
15-Feb-12
|
15-Mar-12
|
28,800,000
|
|
15-Mar-12
|
15-Apr-12
|
28,800,000
|
|
15-Apr-12
|
15-May-12
|
28,800,000
|
|
15-May-12
|
15-Jun-12
|
28,800,000
|
|
15-Jun-12
|
15-Jul-12
|
28,800,000
|
|
15-Jul-12
|
15-Aug-12
|
28,800,000
|
|
15-Aug-12
|
15-Sep-12
|
28,800,000
|
|
15-Sep-12
|
15-Oct-12
|
28,800,000
|
|
15-Oct-12
|
15-Nov-12
|
28,800,000
|
|
15-Nov-12
|
15-Dec-12
|
28,800,000
|
|
15-Dec-12
|
15-Jan-13
|
28,800,000
|
|
15-Jan-13
|
15-Feb-13
|
28,800,000
|
|
15-Feb-13
|
15-Mar-13
|
28,285,714
|
|
15-Mar-13
|
15-Apr-13
|
27,771,429
|
|
15-Apr-13
|
15-May-13
|
27,257,143
|
|
15-May-13
|
15-Jun-13
|
26,742,857
|
|
15-Jun-13
|
15-Jul-13
|
26,228,571
|
|
15-Jul-13
|
15-Aug-13
|
25,714,286
|
|
15-Aug-13
|
15-Sep-13
|
25,200,000
|
|
15-Sep-13
|
15-Oct-13
|
24,685,714
|
|
15-Oct-13
|
15-Nov-13
|
24,171,429
|
|
15-Nov-13
|
15-Dec-13
|
23,657,143
|
|
15-Dec-13
|
15-Jan-14
|
23,142,857
|
|
15-Jan-14
|
15-Feb-14
|
22,628,571
|
|
15-Feb-14
|
15-Mar-14
|
22,114,286
|
|
15-Mar-14
|
15-Apr-14
|
21,600,000
|
|
15-Apr-14
|
15-May-14
|
21,085,714
|
|
15-May-14
|
15-Jun-14
|
20,571,429
|
|
15-Jun-14
|
15-Jul-14
|
20,057,143
|
|
15-Jul-14
|
15-Aug-14
|
19,542,857
|
|
15-Aug-14
|
15-Sep-14
|
19,028,571
|
|
15-Sep-14
|
15-Oct-14
|
18,514,286
|
|
15-Oct-14
|
15-Nov-14
|
18,000,000
|
|
15-Nov-14
|
15-Dec-14
|
17,485,714
|
|
15-Dec-14
|
15-Jan-15
|
16,971,429
|
|
15-Jan-15
|
15-Feb-15
|
16,457,143
|
|
15-Feb-15
|
15-Mar-15
|
15,942,857
|
|
15-Mar-15
|
15-Apr-15
|
15,428,571
|
|
15-Apr-15
|
15-May-15
|
14,914,286
|
|
15-May-15
|
15-Jun-15
|
14,400,000
|
|
15-Jun-15
|
15-Jul-15
|
13,885,714
|
|
15-Jul-15
|
15-Aug-15
|
13,371,429
|
|
15-Aug-15
|
15-Sep-15
|
12,857,143
|
|
15-Sep-15
|
15-Oct-15
|
12,342,857
|
|
15-Oct-15
|
15-Nov-15
|
11,828,571
|
|
15-Nov-15
|
15-Dec-15
|
11,314,286
|
|
15-Dec-15
|
15-Jan-16
|
10,800,000
|
|
15-Jan-16
|
15-Feb-16
|
10,285,714
|
|
15-Feb-16
|
15-Mar-16
|
9,771,429
|
|
15-Mar-16
|
15-Apr-16
|
9,257,143
|
|
15-Apr-16
|
15-May-16
|
8,742,857
|
|
15-May-16
|
15-Jun-16
|
8,228,571
|
|
15-Jun-16
|
15-Jul-16
|
7,714,286
|
|
15-Jul-16
|
15-Aug-16
|
7,200,000
|
|
15-Aug-16
|
15-Sep-16
|
6,685,714
|
|
15-Sep-16
|
15-Oct-16
|
6,171,429
|
|
15-Oct-16
|
15-Nov-16
|
5,657,143
|
|
15-Nov-16
|
15-Dec-16
|
5,142,857
|
|
15-Dec-16
|
15-Jan-17
|
4,628,571
|
|
15-Jan-17
|
15-Feb-17
|
4,114,286
|
|
15-Feb-17
|
15-Mar-17
|
3,600,000
|
|
15-Mar-17
|
15-Apr-17
|
3,085,714
|
|
15-Apr-17
|
15-May-17
|
2,571,429
|
|
15-May-17
|
15-Jun-17
|
2,057,143
|
|
15-Jun-17
|
15-Jul-17
|
1,542,857
|
|
15-Jul-17
|
15-Aug-17
|
1,028,571
|
|
15-Aug-17
|
15-Sep-17
|
514,286
|
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of October 17, 2007 between
Barclays
Bank PLC (hereinafter referred to as “Party A” or
“Pledgor”)
and
U.S.
Bank
National Association, as Trustee of Charming Shoppes Master Trust
(hereinafter
referred to as “Party B” or “Secured
Party”).
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
|
|
Paragraph
13. Elections and
Variables.
|
|
(a)
|
Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
|
(A)
|
“Delivery
Amount” has the meaning specified in
Paragraph 3(a), except that:
|
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation Date”,
and
|
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall be deleted in its entirety and replaced
with the following:
|
“The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greatest of
|
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured
Party,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Credit Support Amount for such Valuation
Date exceeds (b) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Credit Support Amount for such Valuation
Date exceeds (b) the Fitch Value, as of such Valuation Date, of all
Posted
Credit Support held by the Secured
Party.”
|
|
|
(B)
|
“Return
Amount” has the meaning specified in Paragraph 3(b), except
that:
|
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the least of
|
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation
Date,
|
|
|
(2)
|
the
amount by which (a) the Moody’s Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Moody’s
Credit Support Amount for such Valuation Date,
and
|
|
|
(3)
|
the
amount by which (a) the Fitch Value, as of such Valuation Date, of
all
Posted Credit Support held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation
Date.”
|
|
|
(C)
|
“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation
Date,
reference shall be made to the S&P Credit Support Amount, the ▇▇▇▇▇’▇
Credit Support Amount, or the Fitch Credit Support Amount, in each
case for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
|
(ii)
|
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible Collateral” (for the
avoidance of doubt, all Eligible Collateral to be denominated in
USD):
|
Collateral
|
S&P
Approved Ratings Valuation Percentage
|
S&P
Required Ratings Valuation Percentage
|
▇▇▇▇▇'▇
First Trigger Valuation Percentage
|
▇▇▇▇▇'▇
Second Trigger Valuation Percentage
|
Fitch
& DBRS Valuation Percentage
|
|
(A)Cash
|
100%
|
80%
|
100%
|
100%
|
100%
|
|
(B)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.9%
|
79.1%
|
100%
|
100%
|
97.5%
|
|
(C)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not more
than
ten years
|
92.6%
|
74.1%
|
100%
|
94%
|
86.3%
|
|
(D)Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
N/A
|
N/A
|
100%
|
87%
|
79%
|
Notwithstanding
the Valuation Percentages set forth in the preceding table, upon the first
Transfer of Eligible Collateral under this Annex, the Pledgor may, at the
Pledgor’s expense, agree the Valuation Percentages in relation to (B) through
(D) above with the relevant rating agency (to the extent such rating agency
is
providing a rating for the Certificates), and upon such agreement (as evidenced
in writing), such Valuation Percentages shall supersede those set forth in
the
preceding table.
|
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other Eligible
Support” for the party specified:
Such
Other Eligible Support as the Pledgor may designate; provided, at the expense
of
the Pledgor, the prior written consent of the relevant rating agency (to the
extent such rating agency is providing a rating for the Certificates) shall
have
been obtained. For the avoidance of doubt, there are no items that
qualify as Other Eligible Support as of the date of this Annex.
|
|
(iv)
|
Threshold.
|
|
|
(A)
|
“Independent
Amount” means zero with respect to Party A and Party
B.
|
|
|
(B)
|
“▇▇▇▇▇’▇
Threshold” means, with respect to Party A and any Valuation
Date, if a ▇▇▇▇▇'▇ First Trigger Downgrade Event has occurred and
is
continuing and such ▇▇▇▇▇’▇ First Trigger Downgrade Event has been
continuing for at least 30 Local Business Days or since this Annex
was
executed, zero; otherwise,
infinity.
|
“S&P
Threshold” means, with respect to Party A and any Valuation Date,
if an S&P Approved Threshold Downgrade Event has occurred and is
continuing and such S&P Approved Threshold Downgrade Event has been
continuing for at least 10 Local Business Days or since this Annex was executed,
zero; otherwise, infinity.
“Fitch
Threshold” means, with respect to Party A and any Valuation Date,
if a Fitch Approved Threshold Downgrade Event has occurred and is continuing
and
such Fitch Approved Threshold Downgrade Event has been continuing for at least
30 calendar days or since this Annex was executed, zero; otherwise,
infinity
|
|
“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
|
|
|
(C)
|
“Minimum
Transfer Amount” means USD 50,000; provided further, with
respect to the Secured Party at any time when the Secured Party is
a
Defaulting Party, “Minimum Transfer Amount”
means zero.
|
|
|
(D)
|
Rounding: The
Delivery Amount will be rounded up and the Return Amount will be
rounded
down to the nearest integral multiple of USD
1000.
|
|
(c)
|
Valuation
and Timing.
|
|
|
(i)
|
“Valuation
Agent” means Party A. The Valuation Agent’s
calculations shall be made in accordance with standard market practices
using commonly accepted third party sources such as Bloomberg or
Reuters.
|
|
|
(ii)
|
“Valuation
Date” means each Local Business
Day.
|
|
|
(iii)
|
“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same
date.
|
|
|
(iv)
|
“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies. The following Termination Events will
be a “Specified Condition” for the party
specified (that party being the Affected Party if the Termination
Event
occurs with respect to that
party): None.
|
|
(e)
|
Substitution.
|
|
|
(i)
|
“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
|
|
|
(ii)
|
Consent. If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
|
(i)
|
“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
|
|
|
(ii)
|
Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value, ▇▇▇▇▇’▇ Value, and Fitch Value, on
any date, of Eligible Collateral will be calculated as
follows:
|
For
Eligible Collateral comprised of Cash, the amount of such Cash.
For
Eligible Collateral comprising securities, the sum of (A) the product of (1)(x)
the bid price at the Valuation Time for such securities on the principal
national securities exchange on which such securities are listed, or (y) if
such
securities are not listed on a national securities exchange, the bid price
for
such securities quoted at the Valuation Time by any principal market maker
for
such securities selected by the Valuation Agent, or (z) if no such bid price
is
listed or quoted for such date, the bid price listed or quoted (as the case
may
be) at the Valuation Time for the day next preceding such date on which such
prices were available and (2) the applicable Valuation Percentage for such
Eligible Collateral, and (B) the accrued interest on such securities (except
to
the extent Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or included
in the applicable price referred to in the immediately preceding clause (A))
as
of such date.
|
|
(iii)
|
Alternative. The
provisions of Paragraph 5 will apply; provided, that the obligation
of the
appropriate party to deliver the undisputed amount to the other party
will
not arise prior to the time that would otherwise have applied to
the
Transfer pursuant to, or deemed made, under Paragraph 3 if no dispute
had
arisen.
|
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
|
(i)
|
Eligibility
to Hold Posted Collateral;
Custodians.
|
Party
B
is not and will not be entitled to hold Posted Collateral. Party B's
Custodian will be entitled to hold Posted Collateral pursuant to Paragraph
6(b);
provided that the following conditions applicable to it are
satisfied:
|
|
(1)
|
The
Custodian for Party B shall be the same banking institution that
acts as
Trustee for the Certificates.
|
|
|
(2)
|
The
Custodian for Party B shall have a short-term unsecured and unsubordinated
debt rating from S&P of at least “A-1” or, if no short-term rating is
available, a long-term unsecured debt rating from S&P of
“A+.” The Trustee is required to replace the Custodian within
60 calendar days of the Custodian’s rating falling below “A-1,” in the
case of a short-term rating, or “A+,” in the case of a long-term
rating.
|
Initially,
the Custodian for Party B is: to be advised in
writing by Party B to Party A.
|
|
(ii)
|
Use
of Posted Collateral. The provisions of Paragraph
6(c) will not apply to Party B; therefore, Party B will not have
any of
the rights specified in Paragraph 6(c)(i) or 6(c)(ii); provided,
however,
that the Trustee shall invest Cash Posted Credit Support in such
investments as designated by Party A, with losses (net of gains)
incurred
in respect of such investments to be for the account of Party A;
provided
further, that such investments designated by Party A shall be limited
to
money market funds rated “AAAm” or “AAAm-G” by S&P and from which such
invested Cash Posted Credit Support may be withdrawn upon no more
than 2
Local Business Day’s notice of a request for
withdrawal.
|
|
(h)
|
Distributions
and Interest Amount.
|
|
|
(i)
|
Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash pursuant to Paragraph
13(g)(ii).
|
|
|
(ii)
|
Transfer
of Interest Amount. The Transfer of the Interest Amount will
be made on the second Local Business Day following the end of each
calendar month and on any other Local Business Day on which Posted
Collateral in the form of Cash is Transferred to the Pledgor pursuant
to
Paragraph 3(b); provided, however, that the obligation of Party B
to
Transfer any Interest Amount to Party A shall be limited to the extent
that Party B has earned and received such funds and such funds are
available to Party B.
|
|
|
(iii)
|
Alternative
to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
|
|
(i)
|
Additional
Representation(s). There are no additional
representations by either party.
|
|
(j)
|
Other
Eligible Support and Other Posted
Support.
|
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support shall
have
such meaning as the parties shall agree in writing from time to time
pursuant to Paragraph 13(b)(iii).
|
|
(k)
|
Demands
and Notices.All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to
or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance with
the
terms of this paragraph) to the other
party:
|
If
to
Party A:
▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇,
England
Attention: Swaps
Documentation
Facsimile
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6858
Telephone
No.: ▇▇▇▇-▇▇▇-▇▇▇▇/6904
with
a
copy to:
General
Counsel’s Office
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Notices
to Party A shall not be deemed effective unless delivered to the London
address
set forth above.
If
to
Party B, at the address specified pursuant to the Notices Section of
this
Agreement.
If
to
Party B’s Custodian: to be provided in writing to Party
A.
|
(l)
|
Address
for Transfers. Each Transfer hereunder shall be
made to the address specified in writing from time to time by the
party to
which such Transfer will be made.
|
|
(m)
|
Other
Provisions.
|
|
|
(i)
|
Collateral
Account. The Secured Party shall cause any
Custodian appointed hereunder to open and maintain a segregated trust
account and to hold, record and identify all the Posted Collateral
in such
segregated trust account and, subject to Paragraph 8(a), such Posted
Collateral shall at all times be and remain the property of the Pledgor
and shall at no time constitute the property of, or be commingled
with the
property of, the Secured Party or the
Custodian.
|
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (a) the term “Secured Party” as used in this Annex means only
Party B, (b) the term “Pledgor” as used in this Annex means only Party A,
(c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
|
(iii)
|
Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, Fitch Value”. Paragraph 4(d)(ii) is hereby
amended by (A) deleting the words “a Value” and inserting in lieu thereof
“an S&P Value, a ▇▇▇▇▇’▇ Value, and a Fitch Value” and (B) deleting
the words “the Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, and Fitch Value”. Paragraph 5 (flush language)
is hereby amended by deleting the word “Value” and inserting in lieu
thereof “S&P Value, ▇▇▇▇▇’▇ Value, or Fitch
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ Value, and Fitch Value”. Paragraph 5(i)(C) is hereby
amended by deleting the word “the Value, if” and inserting in lieu thereof
“any one or more of the S&P Value, ▇▇▇▇▇’▇ Value, or Fitch Value, as
may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, ▇▇▇▇▇’▇ Value, or Fitch Value” and (2)
deleting the second instance of the words “the Value” and inserting in
lieu thereof “such disputed S&P Value, ▇▇▇▇▇’▇ Value, or Fitch
Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is
hereby amended by deleting the word “Value” and inserting in lieu thereof
“least of the S&P Value, ▇▇▇▇▇’▇ Value or Fitch
Value”.
|
|
|
(iv)
|
Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
|
|
|
(v)
|
Events
of Default. Paragraph 7 will not apply to cause
any Event of Default to exist with respect to Party B except that
Paragraph 7(i) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support
Annex. Notwithstanding anything to the contrary in Paragraph 7,
any failure by Party A to comply with or perform any obligation to
be
complied with or performed by Party A under the Credit Support Annex
shall
only be an Event of Default if (A) a ▇▇▇▇▇’▇ Second Trigger Downgrade
Event has occurred and been continuing for 30 or more Local Business
Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, (C) a Fitch Required
Ratings Downgrade Event has occurred and been continuing for 30 or
more
days, or (D) a DBRS Required Ratings Downgrade Event has occurred
and been
continuing for 30 or more days.
|
|
|
(vi)
|
Expenses. Notwithstanding
anything to the contrary in Paragraph 10, the Pledgor will be responsible
for, and will reimburse the Secured Party for, all transfer and other
taxes and other costs involved in any Transfer of Eligible
Collateral.
|
|
|
(vii)
|
Withholding. Paragraph
6(d)(ii) is hereby amended by inserting immediately after “the Interest
Amount” in the fourth line thereof the words “less any
applicable withholding taxes.”
|
|
|
(viii)
|
Additional
Definitions. As used in this
Annex:
|
“Exposure”
has the meaning specified in Paragraph 12, except that (1) after the word
“Agreement” the words “(assuming, for this purpose only, that Part
1(f)(i)(A)-(E) of the Schedule is deleted)” shall be inserted and (2) at the end
of the definition of Exposure, the words “with terms that are, in all material
respects, no less beneficial for Party B than those of this Agreement” shall be
added.
“Fitch
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from Fitch at least equal to the Fitch Approved Ratings
Threshold.
“Fitch
Credit Support Amount” means, for any Valuation Date,
|
|
(A)
|
if
the Fitch Threshold for such Valuation Date is zero, an amount equal
to
the sum of (1) the Secured Party’s Exposure and (2) the sum, for each
Transaction, of the product of (a) the Fitch Volatility Cushion for
such
Transaction and (b) the Notional Amount of such
Transaction for the Calculation Period which includes such Valuation
Date,
or
|
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“Fitch
Valuation Percentage” means, for any Valuation Date and each item
of Eligible Collateral, if the Fitch Threshold for such Valuation Date is zero,
the corresponding percentage for such Eligible Collateral in the column headed
“Fitch Valuation Percentage”.
“Fitch
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the Fitch Valuation
Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii). The Fitch Value of Cash will be the amount of such
Cash.
“Fitch
Volatility Cushion” means, for any Transaction, the related
percentage set forth in the following table:
|
Remaining
Weighted Average Maturity of Transaction
(years)
|
||||||||||||||||||||||||||||||||||||||||
|
Rating
of Most Senior Class of Certificates Outstanding on
Valuation
Date
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
||||||||||||||||||||||||||||||
|
At
least “AA-”
|
0.6 | % | 1.6 | % | 2.6 | % | 3.4 | % | 4.2 | % | 4.8 | % | 5.5 | % | 5.9 | % | 6.4 | % | 7.0 | % | ||||||||||||||||||||
|
“A+/A”
|
0.3 | % | 0.8 | % | 1.3 | % | 1.7 | % | 2.1 | % | 2.4 | % | 2.8 | % | 3.0 | % | 3.3 | % | 3.6 | % | ||||||||||||||||||||
|
“A-/BBB+”
or lower
|
0.2 | % | 0.6 | % | 1.0 | % | 1.3 | % | 1.6 | % | 1.9 | % | 2.1 | % | 2.3 | % | 2.5 | % | 2.7 | % | ||||||||||||||||||||
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the parties
for
the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible
Collateral for which delivery is contemplated by other means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“▇▇▇▇▇’▇
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is zero and it is not the
case that a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred
and been continuing for at least 30 Local Business Days, an amount
equal
to the greater of (x) zero and (y) the sum of the Secured Party’s Exposure
and the aggregate of ▇▇▇▇▇’▇ First Trigger Additional Amounts for each
Transaction and such Valuation
Date;
|
|
|
(B)
|
if
a ▇▇▇▇▇’▇ Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, an amount equal to
the
greatest of (x) zero, (y) the aggregate amount of the Next Payments
for
each Transaction and such Valuation Date, and (z) the sum of the
Secured
Party’s Exposure and the aggregate of ▇▇▇▇▇’▇ Second Trigger Additional
Amounts for each Transaction and such Valuation Date;
or
|
|
|
(C)
|
if
the ▇▇▇▇▇’▇ Threshold for such Valuation Date is infinity,
zero.
|
“▇▇▇▇▇’▇
First Trigger Additional Amount” means, for
any Valuation Date and any Transaction, the product of (i) the applicable
▇▇▇▇▇’▇ First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date.
“▇▇▇▇▇’▇
First Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from ▇▇▇▇▇’▇ at least equal to the ▇▇▇▇▇’▇ First Trigger Ratings
Threshold.
“▇▇▇▇▇’▇
Second Trigger Additional Amount” means, for any Valuation Date
and any Transaction,
|
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the product
of (i)
the applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 2, (ii)
the Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
or
|
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the product of
(i) the
applicable ▇▇▇▇▇’▇ Second Trigger Factor set forth in Table 3, (ii) the
Scale Factor, if any, for such Transaction, or, if no Scale Factor
is
applicable for such Transaction, one, and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction
(each as
defined in the related Confirmation) which includes such Valuation
Date;
|
“▇▇▇▇▇’▇
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the ▇▇▇▇▇'▇ Threshold for such
Valuation Date is zero and it is not the case that a ▇▇▇▇▇’▇ Second Trigger
Downgrade Event has occurred and been continuing for at least 30
Local Business Days, the corresponding percentage for such Eligible Collateral
in the column headed “▇▇▇▇▇’▇ First Trigger Valuation Percentage” or (ii) if a
▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “▇▇▇▇▇’▇ Second
Trigger Valuation Percentage”.
“▇▇▇▇▇’▇
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price obtained by the
Valuation Agent and (y) the applicable ▇▇▇▇▇’▇ Valuation Percentage set forth in
Paragraph 13(b)(ii). The ▇▇▇▇▇’▇ Value of Cash will be the amount of such
Cash.
“Next
Payment” means, for each Transaction and each Valuation Date, the
greater of (i) the aggregate amount of any payments due to be made by Party
A
under Section 2(a) in respect of such Transaction on the related Next Payment
Date less the aggregate amount of any payments due to be made by Party B under
Section 2(a) on such Next Payment Date (any such payments determined based
on
rates prevailing on such Valuation Date) and (ii) zero.
“Next
Payment Date” means, for each Transaction, the date on which the
next scheduled payment under such Transaction is due to be paid.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved Ratings
Threshold.
“S&P
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the Secured Party’s Exposure;
|
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
125% of
the Secured Party’s Exposure; or
|
|
|
(C)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral, (i) if the S&P Threshold for such
Valuation Date is zero and it is not the case that a S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business
Days, the corresponding percentage for such Eligible Collateral in the column
headed “S&P Approved Ratings Valuation Percentage” or (ii) if an S&P
Required Ratings Downgrade Event has occurred and been continuing for at least
10 Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed “S&P Required Ratings Valuation
Percentage”.
“S&P
Value” means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the Valuation Agent
for
such Eligible Collateral and (y) the applicable S&P Valuation Percentage for
such Eligible Collateral set forth in paragraph 13(b)(ii).
“Transaction-Specific
Hedge” means any Transaction in respect of which (x) the notional
amount is “balance guaranteed” or (y) the notional amount for any Calculation
Period (as defined in the related Confirmation) otherwise is not a specific
dollar amount that is fixed at the inception of the Transaction.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value, ▇▇▇▇▇’▇ Value and Fitch Value with respect to any Eligible Collateral or
Posted Collateral, the applicable S&P Valuation Percentage, ▇▇▇▇▇’▇
Valuation Percentage, or Fitch Valuation Percentage for such Eligible Collateral
or Posted Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
“Value”
shall mean, in respect of any date, the related S&P Value, the related
▇▇▇▇▇’▇ Value, and the related Fitch Value.
[Remainder
of this page intentionally left blank]
Table
1
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
First Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
First Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.15%
|
1.10%
|
|
Greater
than 1 but less than or equal to 2
|
0.30%
|
1.20%
|
|
Greater
than 2 but less than or equal to 3
|
0.40%
|
1.30%
|
|
Greater
than 3 but less than or equal to 4
|
0.60%
|
1.40%
|
|
Greater
than 4 but less than or equal to 5
|
0.70%
|
1.50%
|
|
Greater
than 5 but less than or equal to 6
|
0.80%
|
1.60%
|
|
Greater
than 6 but less than or equal to 7
|
1.00%
|
1.60%
|
|
Greater
than 7 but less than or equal to 8
|
1.10%
|
1.70%
|
|
Greater
than 8 but less than or equal to 9
|
1.20%
|
1.80%
|
|
Greater
than 9 but less than or equal to 10
|
1.30%
|
1.90%
|
|
Greater
than 10 but less than or equal to 11
|
1.40%
|
1.90%
|
|
Greater
than 11 but less than or equal to 12
|
1.50%
|
2.00%
|
|
Greater
than 12 but less than or equal to 13
|
1.60%
|
2.10%
|
|
Greater
than 13 but less than or equal to 14
|
1.70%
|
2.10%
|
|
Greater
than 14 but less than or equal to 15
|
1.80%
|
2.20%
|
|
Greater
than 15 but less than or equal to 16
|
1.90%
|
2.30%
|
|
Greater
than 16 but less than or equal to 17
|
2.00%
|
2.30%
|
|
Greater
than 17 but less than or equal to 18
|
2.00%
|
2.40%
|
|
Greater
than 18 but less than or equal to 19
|
2.00%
|
2.40%
|
|
Greater
than 19 but less than or equal to 20
|
2.00%
|
2.50%
|
|
Greater
than 20 but less than or equal to 21
|
2.00%
|
2.50%
|
|
Greater
than 21 but less than or equal to 22
|
2.00%
|
2.50%
|
|
Greater
than 22 but less than or equal to 23
|
2.00%
|
2.50%
|
|
Greater
than 23 but less than or equal to 24
|
2.00%
|
2.50%
|
|
Greater
than 24 but less than or equal to 25
|
2.00%
|
2.50%
|
|
Greater
than 25 but less than or equal to 26
|
2.00%
|
2.50%
|
|
Greater
than 26 but less than or equal to 27
|
2.00%
|
2.50%
|
|
Greater
than 27 but less than or equal to 28
|
2.00%
|
2.50%
|
|
Greater
than 28 but less than or equal to 29
|
2.00%
|
2.50%
|
|
Greater
than 29
|
2.00%
|
2.50%
|
Table
2
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
Swaps
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency Swaps
|
|
Equal
to or less than 1
|
0.50%
|
6.10%
|
|
Greater
than 1 but less than or equal to 2
|
1.00%
|
6.30%
|
|
Greater
than 2 but less than or equal to 3
|
1.50%
|
6.40%
|
|
Greater
than 3 but less than or equal to 4
|
1.90%
|
6.60%
|
|
Greater
than 4 but less than or equal to 5
|
2.40%
|
6.70%
|
|
Greater
than 5 but less than or equal to 6
|
2.80%
|
6.80%
|
|
Greater
than 6 but less than or equal to 7
|
3.20%
|
7.00%
|
|
Greater
than 7 but less than or equal to 8
|
3.60%
|
7.10%
|
|
Greater
than 8 but less than or equal to 9
|
4.00%
|
7.20%
|
|
Greater
than 9 but less than or equal to 10
|
4.40%
|
7.30%
|
|
Greater
than 10 but less than or equal to 11
|
4.70%
|
7.40%
|
|
Greater
than 11 but less than or equal to 12
|
5.00%
|
7.50%
|
|
Greater
than 12 but less than or equal to 13
|
5.40%
|
7.60%
|
|
Greater
than 13 but less than or equal to 14
|
5.70%
|
7.70%
|
|
Greater
than 14 but less than or equal to 15
|
6.00%
|
7.80%
|
|
Greater
than 15 but less than or equal to 16
|
6.30%
|
7.90%
|
|
Greater
than 16 but less than or equal to 17
|
6.60%
|
8.00%
|
|
Greater
than 17 but less than or equal to 18
|
6.90%
|
8.10%
|
|
Greater
than 18 but less than or equal to 19
|
7.20%
|
8.20%
|
|
Greater
than 19 but less than or equal to 20
|
7.50%
|
8.20%
|
|
Greater
than 20 but less than or equal to 21
|
7.80%
|
8.30%
|
|
Greater
than 21 but less than or equal to 22
|
8.00%
|
8.40%
|
|
Greater
than 22 but less than or equal to 23
|
8.00%
|
8.50%
|
|
Greater
than 23 but less than or equal to 24
|
8.00%
|
8.60%
|
|
Greater
than 24 but less than or equal to 25
|
8.00%
|
8.60%
|
|
Greater
than 25 but less than or equal to 26
|
8.00%
|
8.70%
|
|
Greater
than 26 but less than or equal to 27
|
8.00%
|
8.80%
|
|
Greater
than 27 but less than or equal to 28
|
8.00%
|
8.80%
|
|
Greater
than 28 but less than or equal to 29
|
8.00%
|
8.90%
|
|
Greater
than 29
|
8.00%
|
9.00%
|
Table
3
|
Remaining
Weighted
Average Life
of
Hedge in Years
|
▇▇▇▇▇’▇
Second Trigger Factor—Single Currency Interest Rate
▇▇▇▇▇▇
|
▇▇▇▇▇’▇
Second Trigger Factor—Currency ▇▇▇▇▇▇
|
|
Equal
to or less than 1
|
0.65%
|
6.30%
|
|
Greater
than 1 but less than or equal to 2
|
1.30%
|
6.60%
|
|
Greater
than 2 but less than or equal to 3
|
1.90%
|
6.90%
|
|
Greater
than 3 but less than or equal to 4
|
2.50%
|
7.10%
|
|
Greater
than 4 but less than or equal to 5
|
3.10%
|
7.40%
|
|
Greater
than 5 but less than or equal to 6
|
3.60%
|
7.70%
|
|
Greater
than 6 but less than or equal to 7
|
4.20%
|
7.90%
|
|
Greater
than 7 but less than or equal to 8
|
4.70%
|
8.20%
|
|
Greater
than 8 but less than or equal to 9
|
5.20%
|
8.40%
|
|
Greater
than 9 but less than or equal to 10
|
5.70%
|
8.60%
|
|
Greater
than 10 but less than or equal to 11
|
6.10%
|
8.80%
|
|
Greater
than 11 but less than or equal to 12
|
6.50%
|
9.00%
|
|
Greater
than 12 but less than or equal to 13
|
7.00%
|
9.20%
|
|
Greater
than 13 but less than or equal to 14
|
7.40%
|
9.40%
|
|
Greater
than 14 but less than or equal to 15
|
7.80%
|
9.60%
|
|
Greater
than 15 but less than or equal to 16
|
8.20%
|
9.80%
|
|
Greater
than 16 but less than or equal to 17
|
8.60%
|
10.00%
|
|
Greater
than 17 but less than or equal to 18
|
9.00%
|
10.10%
|
|
Greater
than 18 but less than or equal to 19
|
9.40%
|
10.30%
|
|
Greater
than 19 but less than or equal to 20
|
9.70%
|
10.50%
|
|
Greater
than 20 but less than or equal to 21
|
10.00%
|
10.70%
|
|
Greater
than 21 but less than or equal to 22
|
10.00%
|
10.80%
|
|
Greater
than 22 but less than or equal to 23
|
10.00%
|
11.00%
|
|
Greater
than 23 but less than or equal to 24
|
10.00%
|
11.00%
|
|
Greater
than 24 but less than or equal to 25
|
10.00%
|
11.00%
|
|
Greater
than 25 but less than or equal to 26
|
10.00%
|
11.00%
|
|
Greater
than 26 but less than or equal to 27
|
10.00%
|
11.00%
|
|
Greater
than 27 but less than or equal to 28
|
10.00%
|
11.00%
|
|
Greater
than 28 but less than or equal to 29
|
10.00%
|
11.00%
|
|
Greater
than 29
|
10.00%
|
11.00%
|
EXHIBIT
I
FORM
OF NON-U.S. BENEFICIAL OWNERSHIP CERTIFICATION
BY
MEMBER ORGANIZATION
[Date]
[Euroclear
or Clearstream Banking, société anonyme, as applicable]
Re: Charming
Shoppes Master Trust (the “Trust”)
Series
2007-1 Certificates, Class [A] [M] [B] (the “Certificates”)
This
is
to certify that as of the date hereof, and except as set forth below, the
Certificates held by you for our account are beneficially owned by a non-U.S.
person(s). As used in this paragraph the term “U.S. person” has the
meaning given to it by Regulation S under the United States Securities Act
of
1933, as amended.
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Certificates
held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence
of
any such notification it may be assumed that this certification applies as
of
such date.
We
understand that this certification is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you, the Trust, Trustee or Transfer Agent and Registrar for the Certificates
to
produce this certification to any interested party in such
proceedings.
Date:
____________, 20___.
| By |
|
_____________________________________
|
| [Agent Member] |
| As, or as agent for, the Beneficial Owner(s) of the Certificates to which this certificate relates. |
EXHIBIT
J
FORM
OF NON-U.S. BENEFICIAL OWNERSHIP CERTIFICATION
BY
EUROCLEAR OR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME
[Date]
[Name
and
address of Trustee]
Re: Charming
Shoppes
Master Trust (the “Trust”)
Series
2007-1 Certificates, Class [A] [M] [B] (the “Certificates”)
This
is
to certify that, based solely on certifications we have received in writing,
by
tested telex or by electronic transmission, from member organizations appearing
in our records as persons being entitled to a portion of the principal amount
of
the Certificates set forth below (our “Member Organizations”)
substantially to the effect set forth in the Series 2007-1 Supplement, dated
as
of October 17, 2007, between Charming Shoppes Receivables Corp., as Seller,
Spirit of America, Inc., as Servicer, and U.S. Bank National Association, as
Trustee, U.S. $_______ principal amount of the above-captioned Certificates
held
by us or on our behalf are beneficially owned by non-U.S.
person(s). As used in this paragraph, the term “U.S. person”
has the meaning given to it by Regulation S under the United States
Securities
Act of 1933, as amended.
We
further certify:
1. that
we are not making available herewith for exchange (or, if relevant, exercise
of
any rights or collection of any interest) any portion of the Regulation S
Temporary Book-Entry Certificates excepted in such certifications;
and
2. that
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
are no longer true and cannot be relied upon as the date hereof.
We
understand that this certification is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you, the Seller or the Trust to produce this certification to any interested
party in such proceedings.
Date:
____________, 20___.
| Yours Faithfully, |
|
[Euroclear or Clearstream Banking, société anonyme]
|
|
By:_________________________________
|