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EXHIBIT 10.1(a)
PURCHASE AND SALE AGREEMENT
DATED AS OF NOVEMBER 25, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL BANK,
AS SELLER,
AND
CHARMING SHOPPES RECEIVABLES CORP.,
AS PURCHASER
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TABLE OF CONTENTS
PAGE
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ARTICLE I
AGREEMENT TO PURCHASE AND SELL;
THE PURCHASER AGREEMENT TO LEND
Section 1.1 Agreement To Purchase and Sell.................................................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 2.1 Representations and Warranties of the Seller...................................................3
Section 2.2 Representations and Warranties of the Seller Relating to the
Receivables; Notice of Breach...............................................................4
Section 2.3 Covenants of the Seller........................................................................8
Section 2.4 Addition of Accounts..........................................................................10
Section 2.5 Removal of Accounts...........................................................................12
Section 2.6 Purchaser May Perform.........................................................................13
Section 2.7 No Assumption of Liability....................................................................13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Calculation of Purchase Price.................................................................14
Section 3.2 Adjustments for Miscellaneous Credits and Fraudulent Charges..................................15
Section 3.3 Loans by the Purchaser to the Seller..........................................................16
ARTICLE IV
OTHER MATTERS RELATING
TO THE SELLER
Section 4.1 Liability of the Seller.......................................................................16
Section 4.2 Merger or Consolidation of, or Assumption of the Obligations of, the Seller...................16
Section 4.3 Limitation on Liability.......................................................................17
Section 4.4 Indemnification...............................................................................17
ARTICLE V
CONDITIONS TO PURCHASE
Section 5.1 Conditions to Purchase........................................................................18
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ARTICLE VI
TERMINATION
Section 6.1 Termination by the Seller.....................................................................18
Section 6.2 Automatic Termination.........................................................................18
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, etc...............................................................................18
Section 7.2 Protection of Right, Title and Interest to the Purchaser......................................19
Section 7.3 GOVERNING LAW.................................................................................19
Section 7.4 Notices.......................................................................................20
Section 7.5 Severability of Provisions....................................................................20
Section 7.6 Assignment....................................................................................20
Section 7.7 Further Assurances............................................................................20
Section 7.8 Non-petition Covenant.........................................................................20
Section 7.9 No Waiver; Cumulative Remedies................................................................21
Section 7.10 Counterparts..................................................................................21
Section 7.11 Third-Party Beneficiaries.....................................................................21
Section 7.12 Merger and Integration........................................................................21
Section 7.13 Headings......................................................................................21
Section 7.14 Acknowledgment and Consent....................................................................21
APPENDIX A Definitions
EXHIBIT A Form of Reassignment of Ineligible Receivables
EXHIBIT B Form of Additional Assignment
EXHIBIT C Form of Reassignment of Removed Accounts
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
November 25, 1997, is between Spirit of America National Bank, a national
banking association ("Spirit"), as Seller, and Charming Shoppes Receivables
Corp., a Delaware corporation, as Purchaser.
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Appendix A. All references herein to
months are to calendar months unless otherwise expressly indicated.
RECITALS
1. Seller, in order to finance its business, wishes to sell Receivables
to the Purchaser, and the Purchaser is willing, on the terms and subject to the
conditions set forth herein, to purchase Receivables from the Seller.
2. In order to fund such purchases, the Purchaser will (subject to
certain exceptions) transfer the Receivables to the Trustee under the Pooling
and Servicing Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL;
THE PURCHASER AGREEMENT TO LEND
Section 1.1 Agreement To Purchase and Sell.
(a) The Seller hereby Conveys to the Purchaser, and the Purchaser
hereby purchases, the Existing Assets, subject in each case to any rights in the
Existing Assets Conveyed prior to the date hereof to the Trustee pursuant to the
Prior PSA. The Purchaser hereby agrees to assume all of the Seller's obligations
under the Prior PSA (as specified in the Pooling and Servicing Agreement),
except to the extent the Seller has retained such obligations in its capacity as
Servicer under the Pooling and Servicing Agreement. It is understood and agreed
that the obligations of the Seller specified herein with respect to the
Receivables shall apply to all Receivables, whether originated before, on or
after the Effective Date.
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(b) Seller Conveys to the Purchaser without recourse (except as
expressly provided herein), and the Purchaser purchases from Seller, all of
Seller's right, title and interest in and to the Receivables now existing and
arising from time to time from the Accounts and Related Assets with respect
thereto (other than the Existing Assets); provided, however, that Principal
Receivables originated after the occurrence of an Insolvency Event with respect
to the Seller shall not be conveyed hereunder.
(c) In connection with such Conveyance, the Seller agrees to record and
file, at its own expense, a financing statement or financing statements
(including any continuation statements with respect to each such financing
statement when applicable) with respect to the Receivables now existing and
hereafter created meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the Conveyance of
the Receivables to the Purchaser and the first priority nature of the
Purchaser's interest in the Receivables, and to deliver a file-stamped copy of
each such financing statement and continuation statement or other evidence of
such filing (which may, for purposes of this Section 1.1, consist of telephone
confirmation of such filing followed by delivery of a file-stamped copy as soon
as practicable) to the Purchaser on or prior to the Effective Date, and in the
case of any continuation statements filed pursuant to this Section 1.1, as soon
as practicable after receipt thereof by the Seller.
(d) In connection with such Conveyance, the Seller agrees, at its own
expense, on or prior to the Effective Date, (i) to indicate in the Pool Index
File maintained in its computer files that Receivables created in connection
with the Accounts have been Conveyed to the Purchaser pursuant to this Agreement
and Conveyed by the Purchaser to the Trustee pursuant to the Pooling and
Servicing Agreement, and (ii) to deliver to the Purchaser and the Trustee a
computer file or microfiche or written list containing a true and complete list
of all such Accounts, identified by account number, Obligor name and Obligor
address and setting forth the Receivable balance as of November 15, 1997. Such
file or list shall be marked as Schedule 1 to this Agreement, delivered to the
Purchaser and the Trustee as confidential and proprietary, and is hereby
incorporated into and made a part of this Agreement. The Seller further agrees
not to alter the file designation referenced in clause (i) of this paragraph
with respect to any Account during the term of this Agreement unless and until
such Account becomes a Removed Account.
The parties intend that if, and to the extent that, such Conveyance is
not deemed to be a sale, the Seller shall be deemed hereunder to have granted to
the Purchaser (as security for the Secured Obligations) a first priority
perfected security interest in all of the Seller's right, title and interest in,
to and under the Receivables now existing and hereafter created and arising from
time to time in connection with the Accounts, all monies due or to become due
with respect thereto, all Collections, all Recoveries, all rights, remedies,
powers and privileges with respect to the Receivables, and all proceeds of the
foregoing, and that this Agreement shall constitute a security agreement under
applicable law.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 2.1 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the Initial Closing Date
and the Effective Date:
(a) Organization and Good Standing. The Seller is a national banking
association duly organized and validly existing under the laws of the United
States of America and has full corporate power, authority and legal right to own
its properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement and each other Transaction Document to
which it is a party.
(b) Due Qualification. The Seller is duly qualified to do business and
is in good standing (or is exempt from such requirement) in any state required
in order to conduct its business, and has obtained all necessary licenses and
approvals with respect to the Seller required under applicable law.
(c) Due Authorization. The execution and delivery by the Seller of this
Agreement and each other Transaction Document to which it is a party and the
consummation of the transactions provided for hereunder and thereunder have been
duly authorized by the Seller by all necessary corporate action on its part and
this Agreement and each other Transaction Document to which it is a party will
remain, from the time of its execution, an official record of the Seller.
(d) Enforceability. Each of this Agreement and each other Transaction
Document to which the Seller is a party constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except as such enforceability may be limited by Debtor Relief Laws.
(e) No Conflict. The execution and delivery of this Agreement and each
other Transaction Document to which the Seller is a party, the performance of
the transactions contemplated hereunder and thereunder and the fulfillment of
the terms hereof and thereof will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Seller is a party or
by which it or any of its properties are bound.
(f) No Violation. The execution and delivery of this Agreement and each
other Transaction Document to which the Seller is a party, the performance of
the transactions contemplated hereunder and thereunder and the fulfillment of
the terms hereof and thereof will not conflict with or violate in any material
respect any Requirements of Law applicable to the Seller.
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(g) No Proceedings. There are no proceedings pending or, to the best
knowledge of the Seller, threatened against the Seller before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or any other
Transaction Document to which it is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Transaction Document, (iii) seeking any determination or ruling that, in
the reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Agreement or any other
Transaction Document to which it is a party, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or any other Transaction Document or (v) seeking to affect
adversely the income tax attributes of the Trust.
(h) All Consents Required. All appraisals, authorizations, consents,
orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery by the Seller of this
Agreement and each other Transaction Document to which it is a party, the
performance of the transactions contemplated hereunder and thereunder and the
fulfillment of the terms hereof, have been obtained.
(i) Eligibility of Accounts. As of the Initial Cut Off Date (or in the
case of an Additional Account, the applicable Addition Cut Off Date), each
Account was an Eligible Account and no selection procedures adverse to the
Purchaser, Investor Certificateholders or Receivables Purchasers have been
employed by the Seller in selecting the Accounts from among the Eligible
Accounts in the Bank Portfolio.
(j) Seller's Deposit Accounts. As of the Initial Closing Date and as of
the Effective Date, deposits in the Seller's deposit accounts were or are
insured to the limits provided by law by BIF.
(k) Solvency. Seller is not insolvent and no Insolvency Event with
respect to Seller has occurred, and the transfer of the Receivables by the
Seller has not been made in anticipation of any such insolvency or Insolvency
Event.
The representations and warranties set forth in this Section 2.1 shall
survive the transfer and assignment of the respective Receivables to the
Purchaser. The Seller hereby represents and warrants to the Purchaser, with
respect to any Series, as of its Closing Date, unless otherwise specified in the
related Supplement or Receivables Purchase Agreement, that the representations
and warranties of the Seller set forth in this Section 2.1 are true and correct
as of such date.
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Section 2.2 Representations and Warranties of the Seller Relating to
the Receivables; Notice of Breach.
(a) Valid Conveyance and Assignment; Eligibility of Receivables.
The Seller hereby represents and warrants to the Purchaser as of the
Initial Closing Date and as of the Effective Date, and with respect to any
Additional Accounts, as of the related Addition Date:
(i) This Agreement constitutes either (A) a valid sale to the
Purchaser of all right, title and interest of the Seller in and to the
Receivables now existing and hereafter created and arising from time to
time in connection with the Accounts, all monies due or to become due
with respect thereto, all Collections, all Recoveries, all rights,
remedies, powers and privileges with respect to the Receivables, and
all proceeds of the foregoing, and such property will be held by the
Purchaser free and clear of any Lien of any Person claiming through or
under the Seller or any of its Affiliates, or (B) a grant of a security
interest (as defined in the UCC as in effect in any applicable
jurisdiction) in such property to the Purchaser, which is enforceable
with respect to the Receivables now existing and hereafter created and
arising from time to time in connection with the Accounts, all monies
due or to become due with respect thereto, all Collections, all
Recoveries, all rights, remedies, powers and privileges with respect to
the Receivables, and all proceeds of the foregoing, upon such creation.
To the extent that this Agreement constitutes the grant of a security
interest to the Purchaser in such property, upon the filing of the
financing statements described in Section 1.1 and in the case of the
Receivables hereafter created, all monies due or to become due with
respect thereto, all Collections, all Recoveries, all rights, remedies,
powers and privileges with respect to the Receivables, and the proceeds
of the foregoing, upon such creation, the Purchaser shall have a first
priority perfected security interest in such property (subject to
Section 9-306 of the UCC as in effect in any applicable jurisdiction).
(ii) Each Receivable then existing has been Conveyed to the
Purchaser free and clear of any Lien of any Person claiming through or
under the Seller or any of its Affiliates and in compliance, in all
material respects, with all Requirements of Law applicable to the
Seller.
(iii) With respect to each Receivable, all consents, licenses,
approvals or authorizations of or registrations or declarations with
any Governmental Authority required to be obtained, effected or given
by the Seller in connection with the Conveyance of such Receivable to
the Purchaser have been duly obtained, effected or given and are in
full force and effect.
(iv) On each day on which any new Receivable is created, the
Seller shall be deemed to represent and warrant to the Purchaser that
(A) each Receivable created on such day is an Eligible Receivable, (B)
each Receivable created on such day has been
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Conveyed to the Purchaser in compliance, in all material respects, with
all Requirements of Law applicable to the Seller, (C) with respect to
each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by
the Seller in connection with the Conveyance of such Receivable to the
Purchaser have been duly obtained, effected or given and are in full
force and effect and (D) the representations and warranties set forth
in subsection 2.2(a)(i) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Initial Cut Off Date, and, with respect to
Additional Accounts, as of the related Addition Cut Off Date, Schedule
1 to this Agreement and the related computer file or microfiche or
written list referred to in subsection 2.4(e), is an accurate and
complete listing in all material respects of all the Accounts, and the
information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Initial Cut Off Date or such applicable
Addition Cut Off Date.
(b) Survival. The representations and warranties set forth in this
Section 2.2 shall survive the Conveyance of any of the respective Receivables to
the Purchaser.
(c) Notice of Breach. Upon discovery by the Seller or the Purchaser of
a breach of any of the representations and warranties set forth in Section 2.1
or 2.2, the party discovering such breach shall give prompt written notice to
the other parties hereto, the Servicer, the Trustee, each Purchaser
Representative and each Enhancement Provider as soon as practicable and in any
event within three Business Days following such discovery.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event of a breach with respect
to a Receivable of any representations and warranties set forth in
subsection 2.2(a)(ii), or in the event that a Receivable is not an
Eligible Receivable as a result of the failure to satisfy the
conditions set forth in clause (d) of the definition of Eligible
Receivable, and any of the following three conditions is met: (A) as a
result of such breach or event such Receivable is charged off as
uncollectible or the rights of the Purchaser (or its assignee) in, to
or under such Receivable or its proceeds are impaired or the proceeds
of such Receivable are not available for any reason to the Purchaser
(or its assignee) free and clear of any Lien; (B) the Lien upon the
subject Receivable (1) arises in favor of the United States of America
or any State or any agency or instrumentality thereof and involves
taxes or liens arising under Title IV of ERISA or (2) has been
consented to by the Seller; or (C) the unsecured short-term debt rating
of the Seller is not at least P-1 by ▇▇▇▇▇'▇ and the Lien upon the
subject Receivable ranks prior to the Lien created pursuant to this
Agreement; then, upon the earlier to occur of the discovery of such
breach or event by the Seller or the Purchaser or receipt by the Seller
of written notice of such breach or event given by the Purchaser, the
Trustee or any Purchaser Representative, each such Receivable shall
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be automatically reassigned to a Person designated by the Seller on the
terms and conditions set forth in subsection 2.2(d)(iii) and shall no
longer be treated as a Receivable; provided, that if such Lien does not
have a material adverse effect on the collectibility of the Receivables
or on the interests of the Purchaser, the Certificateholders or
Receivables Purchasers of any Series or the Enhancement Provider, the
Seller shall have 10 days within which to remove any such Lien.
(ii) Removal After Cure Period. In the event of a breach of
any of the representations and warranties set forth in subsection
2.2(a)(ii)-(v), other than a breach or event as set forth in clause
(d)(i) above, and as a result of such breach the Receivable becomes
charged off or the rights of the Purchaser (or its assignee) in, to or
under the Receivable or its proceeds are impaired or the proceeds of
such Receivable are not available for any reason to the Purchaser (or
its assignee) free and clear of any Lien, then, upon the expiration of
60 days from the earlier to occur of the discovery of any such event by
either the Seller or the Purchaser, or receipt by the Seller of written
notice of any such event given by the Servicer, the Trustee or any
Purchaser Representative, the Purchaser may direct a Person designated
by the Seller to accept an assignment of such Receivable and such
Person shall be obligated to accept such assignment on the terms and
conditions set forth in subsection 2.2(d)(iii) and such Receivable
shall no longer be treated as a Receivable; provided, however, that no
such reassignment shall be required to be made if, on any day within
such applicable period, such representations and warranties with
respect to such Receivable shall then be true and correct in all
material respects as if such Receivable had been created on such day.
(iii) Price of Reassignment. When the provisions of subsection
2.2(d)(i) or (ii) above require the Seller to designate a Person to
accept reassignment of Receivables, the Seller shall pay to the
Purchaser a reassignment price equal to the then Outstanding Balance
for any such Ineligible Receivable. Seller shall pay such reassignment
price (i) in cash, if the Purchaser is required, pursuant to the terms
of the Pooling and Servicing Agreement, to pay the Trust for such
Ineligible Receivable in cash, or (ii) otherwise, by reducing the
Purchase Price to be paid by the Purchaser to the Seller for new
Receivables or the amount then owing with respect to any deferred
Purchase Price, in either case, by an amount equal to such reassignment
price; provided, however, that if such amount is paid in cash Seller
shall deposit such amount to the Collection Account in immediately
available funds no later than the date on which the Purchaser is
required to make a cash payment with respect to such Ineligible
Receivables pursuant to the Pooling and Servicing Agreement.
(e) Reassignment of Trust Portfolio. In the event of a breach of the
representations and warranties set forth in subsection 2.1(d) or 2.2(a)(i), or
in the event that the Purchaser is required to repurchase Principal Receivables
pursuant to Section 2.4(e) of the Pooling and Servicing Agreement, the Purchaser
may direct a Person designated by the Seller to accept reassignment of an amount
of Principal Receivables on the Reassignment Date and such Person shall be
obligated to accept reassignment of such Principal Receivables on the terms and
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conditions set forth below; provided, however, that no such reassignment shall
be required to be made if, at any time during such applicable period, the
representations and warranties contained in subsection 2.1(d) or 2.2(a)(i) shall
then be true and correct in all material respects or in the event that the
Purchaser is no longer required to repurchase Receivables pursuant to Section
2.4(e) of the Pooling and Servicing Agreement.
On the Reassignment Date, the Seller shall deposit in the Collection
Account (for distribution to the applicable Series Account as required pursuant
to Section 2.4(e) of the Pooling and Servicing Agreement) in immediately
available funds an amount equal to the Outstanding Balance of the Receivables
being reassigned in payment for such reassignment.
Upon the deposit, if any, required to be made to the Collection Account
as provided in this Section 2.2 and the reassignment of the applicable
Receivables, the Purchaser shall automatically and without further action be
deemed to transfer, assign, set over and otherwise convey to the Person
designated by the Seller without recourse, representation or warranty, all the
right, title and interest of the Purchaser in and to such Receivables, all
monies due or to become due with respect thereto, all Collections, all
Recoveries, rights, remedies, powers and privileges with respect to such
Receivables, and all proceeds of the foregoing. The Purchaser shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the Seller to effect the conveyance of such
Receivables pursuant to this Section 2.2, including a reconveyance substantially
in the form of Exhibit A. The obligation of the Seller to accept reassignment of
any Receivables, and to make the deposits, if any, required to be made to the
Collection Account as provided in this Section 2.2, shall constitute the sole
remedy respecting the event giving rise to such obligation available to the
Purchaser and its assigns.
Section 2.3 Covenants of the Seller. The Seller hereby covenants that:
(a) Receivables to be Accounts. The Seller will take no action to cause
any Receivable to be evidenced by any instrument (as defined in the UCC as in
effect in any applicable jurisdiction). Each Receivable shall be payable
pursuant to a contract which does not create a Lien on any goods purchased
thereunder. The Seller will take no action to cause any Receivable to be
anything other than an "account," or a "general intangible" or the "proceeds" of
either for purposes of the UCC as in effect in any applicable jurisdiction.
(b) Security Interests. Except for the Conveyances contemplated
hereunder, the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable, whether now existing or hereafter created, or any interest therein;
the Seller will promptly notify the Purchaser of the existence of any Lien on
any Receivable; and the Seller shall defend the right, title and interest of the
Purchaser in, to and under the Receivables, whether now existing or hereafter
created, against all claims of third parties claiming through or under the
Seller; provided, however, that nothing in this subsection 2.3(b) shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Receivables any Liens for municipal and other local taxes if such taxes shall
not at the time be
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due and payable or if the Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(c) Cardholder Agreements and Cardholder Guidelines. The Seller shall
comply with and perform its obligations under the Cardholder Agreements relating
to the Accounts and the Cardholder Guidelines except insofar as any failure to
comply or perform would not materially and adversely affect the rights of the
Purchaser, Trust, the Certificateholders, any Enhancement Provider or any
Receivables Purchasers. The Seller may change the terms and provisions of the
Cardholder Agreements or the Cardholder Guidelines in any respect (including,
without limitation, the reduction of the required minimum monthly payment, the
calculation of the amount, or the timing, of charge-offs and the periodic
finance charges and other fees to be assessed thereon), unless such change would
have a material adverse effect on the collectibility of the Receivables;
provided, however, that the Seller may not change the required minimum monthly
payment or periodic finance charge (collectively, a "Yield Change") unless,
after five Business Days' prior written notice to the Rating Agency of a Yield
Change, the Rating Agency shall have provided written notice to the Seller that
the Rating Agency Condition shall be satisfied or unless such Yield Change is
mandated by applicable law.
(d) Account Allocations. In the event that the Seller is unable for any
reason to transfer Receivables to the Purchaser in accordance with the
provisions of this Agreement (including, without limitation, by reason of an
order by any federal or state governmental agency having regulatory authority
over the Seller or any court of competent jurisdiction that the Seller not
transfer any additional Principal Receivables to the Trust) then, in any such
event, (A) the Seller agrees to allocate and pay to the Purchaser, after the
date of such inability, all Collections with respect to Principal Receivables,
and all amounts which would have constituted Collections with respect to
Principal Receivables but for the Seller's inability to transfer such
Receivables (up to an aggregate amount equal to the amount of Principal
Receivables in the Trust on such date); and (B) the Seller agrees to have such
amounts applied as Collections in accordance with Article IV of the Pooling and
Servicing Agreement. If the Seller is unable pursuant to any Requirement of Law
to allocate Collections as described above, Seller agrees that payments on each
Account with respect to the principal balance of such Account shall be allocated
first to the oldest principal balance of such Account. The parties hereto agree
that Finance Charge Receivables, whenever created or accrued in respect of
Principal Receivables which have been conveyed to the Purchaser (and by the
Purchaser to the Trust) shall continue to be a part of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables to the
Purchaser and Collections with respect thereto shall continue to be allocated
and paid in accordance with Article IV of the Pooling and Servicing Agreement.
(e) Delivery of Collections. The Seller agrees to pay to the Servicer
all payments received by the Seller in respect of the Receivables as soon as
practicable after receipt thereof by the Seller.
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(f) Conveyance of Accounts. The Seller covenants and agrees that it
will not Convey the Accounts to any Person prior to the termination of this
Agreement and the Pooling and Servicing Agreement.
(g) Notice of Adverse Claims. The Seller shall notify the Purchaser and
the Trustee after becoming aware of any Lien on any Receivable.
(h) Information Provided to Rating Agencies. The Seller will use its
best efforts to cause all information provided to any Rating Agency pursuant to
this Agreement or in connection with any action required or permitted to be
taken under this Agreement to be complete and accurate in all material respects.
(i) Notice to Purchaser. The Seller shall notify the Purchaser and the
Trustee of any Early Amortization Event or Servicer Default of which it has
knowledge, promptly upon obtaining such knowledge.
(j) Offices, Records and Books of Account. The Seller will keep its
principal place of business and chief executive office and the office where it
keeps its records concerning the Receivables at the address of the Seller set
forth under its name on the signature page to the Agreement or, upon 30 days'
prior written notice to the Purchaser, the Trustee and each Purchaser
Representative, at any other locations in jurisdictions where all actions
reasonably requested by the Purchaser or the Trustee to protect and perfect the
interest in the Receivables have been taken and completed. The Seller also will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables and
related Cardholder Agreements in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable).
(k) Separate Corporate Existence. The Seller hereby acknowledges that
Trustee and the Investor Certificateholders are, and will be, entering into the
transactions contemplated by the Transaction Documents in reliance upon
Purchaser's identity as a legal entity separate from the Seller, Servicer and
any other Person. Therefore, Seller shall take all reasonable steps to maintain
its existence as a corporation separate and apart from the Purchaser and to make
it apparent to third Persons that the Seller is an entity with assets and
liabilities distinct from those of the Purchaser and that the Purchaser is not a
division of the Seller.
Section 2.4 Addition of Accounts.
(a) Required Additions. In the event the Purchaser is required,
pursuant to Section 2.6(a) of the Pooling and Servicing Agreement, to designate
additional Eligible Accounts as Additional Accounts, the Purchaser shall so
notify the Seller. The Seller (if it so elects) shall designate such Eligible
Accounts as Additional Accounts and shall convey to the Purchaser
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Receivables in such Additional Accounts subject to the same qualifications and
restrictions as are set forth in Section 2.6 of the Pooling and Servicing
Agreement with respect to the Purchaser; provided, however, that the failure of
the Seller to transfer Receivables to the Purchaser as provided in this
paragraph solely as a result of the unavailability of a sufficient amount of
Eligible Receivables shall not constitute a breach of this Agreement; provided
further, that any such failure which has not been timely cured will nevertheless
result in the occurrence of a Series Early Amortization Event with respect to
each Series for which, pursuant to the Supplement therefor, a failure by the
Purchaser to convey Receivables in Additional Accounts to the Trust by the day
on which it is required to convey such Receivables constitutes a "Series Early
Amortization Event" (as defined in such Supplement).
(b) Subject to the restrictions and qualifications set forth in Section
2.6 of the Pooling and Servicing Agreement, the Purchaser shall exercise its
rights to designate additional Eligible Accounts as Additional Accounts or
Automatic Additional Accounts pursuant to Sections 2.6(b) and (c) of the Pooling
and Servicing Agreement when requested to do so by the Seller.
(c) Seller agrees to provide to the Purchaser such information,
certificates, financing statements, opinions and other materials as are
reasonably necessary to enable the Purchaser to satisfy its obligations under
Section 2.6 of the Pooling and Servicing Agreement with respect to Additional
Accounts or Automatic Additional Accounts of the Seller.
(d) In connection with the designation of any Eligible Account
attributable to a Seller as an Additional Account or Automatic Additional
Account, Seller shall represent and warrant that, as of the Addition Date:
(i) no selection procedures believed by the Seller to
be materially adverse to the interests of the Purchaser, the
Investor Certificateholders or any Receivables Purchasers were
utilized in selecting the Additional Accounts from the
available Eligible Accounts from the Bank Portfolio and that
as of the Addition Date, the Seller is not insolvent;
(ii) the Additional Assignment constitutes either (x)
a valid sale to the Purchaser of all right, title and interest
of the Seller in and to the Receivables then existing and
thereafter created from time to time in the Additional
Accounts, all monies due or to become due with respect
thereto, all Collections, all Recoveries, all rights,
remedies, powers and privileges with respect to the
Receivables, and all proceeds of the foregoing and such
property will be held by the Purchaser free and clear of any
Lien of any Person claiming through or under the Seller or any
of its Affiliates, or (y) a grant of a security interest (as
defined in the UCC as in effect in any applicable
jurisdiction) in such property to the Purchaser, which is
enforceable with respect to then existing Receivables in the
Additional Accounts, all monies due or to become due with
respect thereto, all Collections, all Recoveries, and all
proceeds of the foregoing, upon the Conveyance of such
Receivables to the Purchaser, and which will be enforceable
with respect to the
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Receivables thereafter created from time to time in respect of
Additional Accounts conveyed on such Addition Date until the
termination of the Trust, all monies due or to become due with
respect thereto, all Collections, all Recoveries, all rights,
remedies, powers and privileges with respect to the
Receivables, and all proceeds of the foregoing upon such
creation; and (z) if the Assignment constitutes the grant of a
security interest to the Purchaser in such property, upon the
filing of financing statements as described in Section 1.1
with respect to such Additional Accounts and the Receivables
thereafter created from time to time in such Additional
Accounts, all monies due or to become due with respect
thereto, all Collections, all Recoveries, all rights,
remedies, powers and privileges with respect to the
Receivables, and proceeds of the foregoing, upon the creation
of such property, the Purchaser shall have a first priority
perfected security interest in such property (subject to
Section 9-306 of the UCC as in effect in any applicable
jurisdiction), free and clear of any Lien of any Person
claiming through or under the Seller or any of its Affiliates;
and
(iii) each Additional Account is an Eligible Account,
and each Receivable in such Additional Account is an Eligible
Receivable.
(e) Delivery of Documents. In the case of the designation of Additional
Accounts or Automatic Additional Accounts, the Seller shall deliver to the
Purchaser on the date designated by the Purchaser (i) the computer file,
microfiche list or written list required to be delivered pursuant to Section 1.1
with respect to such Additional Accounts or Automatic Additional Accounts and
(ii) a duly executed, written Assignment, substantially in the form of Exhibit A
(the "Additional Assignment").
Section 2.5 Removal of Accounts. (a) On any day of any Due Period, if
so requested by Seller, and if such request is permitted under Section 2.7 of
the Pooling and Servicing Agreement, the Purchaser shall require the
reassignment to it, which the Purchaser shall reassign to a Person designated by
the Seller, of all the Purchaser's and the Trustee's right, title and interest
in, to and under the Receivables then existing and thereafter created, all
monies due or to become due with respect thereto, all Collections, all
Recoveries, rights, remedies, powers and privileges with respect to such
Receivables, and all proceeds of the foregoing with respect to the Accounts
designated by the Purchaser (the "Removed Accounts"), upon satisfaction of the
following conditions:
(i) the removal of any Receivables of any Removed Accounts on
any Removal Date shall not, in the reasonable belief of the Seller, (A)
cause an Early Amortization Event to occur; or (B) result in the
failure of the Purchaser to make any payment specified in the related
Supplement or Receivables Purchase Agreement with respect to any
Series;
(ii) on or prior to the Removal Date, the Seller shall have
delivered to the Purchaser and the Trustee (with a copy to each
Purchaser Representative) (A) for
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execution, a written assignment in substantially the form of Exhibit C
(the "Reassignment"), and (B) a computer file or microfiche or written
list containing a true and complete list of all Removed Accounts
identified by account number and the aggregate amount of the
Receivables in such Removed Accounts as of the Removal Cut Off Date
specified therein, which computer file or microfiche or written list
shall as of the Removal Date modify and amend and be made a part of
this Agreement;
(iii) the Seller shall represent and warrant that no selection
procedures believed by the Seller to be materially adverse to the
interests of the Investor Certificateholders or any Receivables
Purchasers or any Enhancement Provider were utilized in selecting the
Removed Accounts;
(iv) the Seller shall have provided to the Purchaser such
information, certificates, opinions and other materials as are
reasonably necessary to enable the Purchaser to satisfy its obligations
under Section 2.7 of the Pooling and Servicing Agreement with respect
to such Removed Accounts;
(v) the Seller shall have delivered to the Purchaser, the
Trustee, each Purchaser Representative and each Enhancement Provider an
Officer's Certificate confirming the items set forth in clauses (i)
through (iii) above. The Trustee may conclusively rely on such
Officer's Certificate, shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability in so
relying; and
(vi) no Early Amortization Event shall have occurred with
respect to any Series.
Upon satisfaction of the above conditions, the Purchaser shall execute
and deliver the Reassignment to the Person designated by the Seller, and the
Receivables from the Removed Accounts shall no longer be considered Receivables
hereunder.
Seller shall pay the Purchaser, for each Receivable arising in the
Removed Accounts, a reassignment price equal to the Outstanding Balance of such
Receivable. Such payment shall be made in cash in immediately available funds
and shall be made by Seller's deposit to the Collection Account no later than
the effectiveness of such Reassignments.
(b) No Account shall be reassigned hereunder if such removal would be
prohibited by or inconsistent with the terms of any Supplement or Receivables
Purchase Agreement.
Section 2.6 Purchaser May Perform. If the Seller fails to perform any
of its agreements or obligations under this Agreement, the Purchaser may (but
shall not be obligated to) itself perform, or cause performance of, such
agreement or obligation.
Section 2.7 No Assumption of Liability. Nothing in this Agreement shall
constitute or is intended to result in the creation or assumption by the
Purchaser, the Trust, the Trustee, or any Purchaser Representative,
Certificateholder, Certificate Owner, Receivables Purchaser or
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Enhancement Provider of any obligation of the Seller or any other Person to any
Obligor in connection with the Receivables, the Accounts, the Cardholder
Agreements or other agreement or instrument relating thereto.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Calculation of Purchase Price.
(a) The purchase price payable by the Purchaser for the
Existing Assets shall be $5,935,000, and the Purchaser shall pay such
amount to the Seller in cash on the date hereof.
(b) The purchase price (the "the Purchase Price") for each
Receivable (and the Related Assets with respect thereto) Conveyed to
the Purchaser after the Effective Date shall equal the Outstanding
Balance of such Receivable. In addition, as further consideration for
the Seller's agreement to sell Receivables hereunder, the Seller shall
be entitled to receive Deferred Originator Payments as specified in
subsection 4.3(h) of the Pooling and Servicing Agreement. On each
Distribution Date after the Effective Date, the Purchaser and the
Seller shall settle as to the Purchase Price for Receivables and
Related Assets (other than Existing Assets) Conveyed during the related
Due Period. Prior to each Distribution Date, the Purchaser and the
Seller shall determine the aggregate amount of conveyances made during
the related Due Period and the aggregate Purchase Price for Receivables
and Related Assets Conveyed during that Due Period. Amounts paid to the
Purchaser on such Distribution Date pursuant to the Pooling and
Servicing Agreement shall be applied as follows:
first, as a payment of interest on outstanding
deferred Purchase Price, calculated as provided in subsection
(c), with respect to the related (or any earlier) Due Period;
second, as a payment of the remaining Purchase Price
for Receivables Conveyed during the related Due Period and
their Related Assets;
third, as a payment of deferred Purchase Price for
Receivables (other than Existing Assets) Conveyed during any
earlier Due Period and their Related Assets; and
fourth, if the Seller and the Purchaser so agree, as
a loan by the Purchaser to the Seller, on the terms described
in Section 3.3.
Any funds remaining after such application shall be retained
by the Purchaser.
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(c) Any portion of the Purchase Price for Receivables and
Related Assets Conveyed during any Due Period that is not paid under
priority second above on the related Distribution Date shall be treated
as deferred Purchase Price and shall be payable from time to time as
provided in subsection (b). The Purchaser shall pay interest on the
deferred Purchase Price outstanding from time to time under this
Agreement at a variable rate per annum equal to the rate of interest
published in the Wall Street Journal as the "prime rate" as of the last
Business Day of the most recent Due Period. Such interest shall be
computed on the basis of the actual number of days elapsed and a
365-day year and shall be paid as provided in subsection (b).
For administrative convenience, interest on such deferred
Purchase Price and on any loans described in Section 3.3 shall be
calculated on the following basis. On each Distribution Date, the
Purchaser and the Seller shall determine whether, after giving effect
to subsection (b), any deferred Purchase Price is outstanding with
respect to Receivables Conveyed during the related (or any earlier) Due
Period and their Related Assets and whether there is any loan
outstanding from the Purchaser to the Seller. Any such outstanding
deferred Purchase Price or outstanding loan is referred to below as an
"Intercompany Balance". The Purchaser and Seller will then determine
the arithmetic mean of the Intercompany Balances on that and the
immediately preceding Distribution Date (or on such Distribution Date
and the Effective Date, in the case of the first Distribution Date),
treating any deferred Purchase Price as a positive number and any loan
as a negative number for purposes of this calculation. If such
arithmetic mean is a positive number, then the amount of deferred
Purchase Price outstanding on each day during the related Due Period
shall be deemed (solely for purposes of calculating interest) to have
equaled such positive number (and the amount of loans outstanding on
each day during such Due Period shall be deemed to have been zero).
Conversely, if such arithmetic mean is a negative number, then the
principal amount of the loan outstanding on each day during the related
Due Period shall be deemed (solely for purposes of calculating
interest) to have equaled the absolute value of such negative number
(and the amount of deferred Purchase Price outstanding on each day
during such Due Period shall be deemed to have been zero).
Section 3.2 Adjustments for Miscellaneous Credits and Fraudulent
Charges. (a) With respect to each Due Period, the aggregate amount of Principal
Receivables (i) which were created in respect of merchandise refused or returned
by the Obligor thereunder or as to which the Obligor thereunder has asserted a
counterclaim or defense, (ii) which were reduced by the Servicer by any rebate,
refund, charge-back or adjustment (including Servicer errors) or (iii) which
were created as a result of a fraudulent or counterfeit charge (with respect to
such Due Period, the "Dilution Amount") then subject to subsection (b) below,
Purchase Price and Deferred Originator Payments that otherwise would be paid to
the Seller with respect to Receivables subsequently generated by Seller shall be
decreased by an amount equal to the Dilution Amount.
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(b) If any decrease is required in the Purchase Price and Deferred
Originator Payments with respect to subsequently generated Receivables pursuant
to subsection (a) above at any time (i) when an Early Amortization Event exists
or (ii) on or after the Purchase Termination Date, then, in lieu of such
reduction, the amount by which the Purchase Price and Deferred Originator
Payments due to Seller should have been so reduced shall be deposited by Seller
in same day funds into the Collection Account for application by the Servicer to
the same extent as if Collections of the applicable Receivable in such amount
had actually been received on such date.
Section 3.3 Loans by the Purchaser to the Seller. The Purchaser may
make loans to the Seller from time to time if so agreed between such parties and
to the extent that the Purchaser has funds available for that purpose after
satisfying its obligations under this Agreement and the Pooling and Servicing
Agreement. Any such loan shall be payable upon demand (and may be prepaid with
penalty or premium) and shall bear interest on the same basis (and payable at
the same time) as is specified in Section 3.1 with respect to deferred Purchase
Price.
ARTICLE IV
OTHER MATTERS RELATING
TO THE SELLER
Section 4.1 Liability of the Seller. The Seller shall be liable
hereunder only to the extent of the obligations specifically undertaken by it in
its capacity as the Seller.
Section 4.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.
(a) The Seller shall not consolidate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Seller substantially as an entirety
shall be, if the Seller is not the surviving entity, organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and shall be a national banking association,
state banking corporation or other entity which is not subject to the
bankruptcy laws of the United States of America and shall expressly
assume, by an agreement supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Purchaser and the Trustee, the
performance of every covenant and obligation of the Seller, as
applicable hereunder and shall benefit from all the rights granted to
the Seller, as applicable hereunder. To the extent that any right,
covenant or obligation of the Seller, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity. In
furtherance hereof, in applying this Section 4.2 to a successor entity,
the term "Insolvency Event" shall be applied by reference to events
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of involuntary liquidation, receivership or conservatorship applicable
to such successor entity as shall be set forth in the officer's
certificate described in subsection 4.2(a)(ii); and
(ii) the Seller shall have delivered to the Purchaser and the
Trustee an Officer's Certificate signed by a Vice President (or any
more senior officer) of the Seller stating that such consolidation,
merger, conveyance or transfer and such supplemental agreement comply
with this Section 4.2 and that all conditions precedent herein provided
for relating to such transaction have been complied with and an Opinion
of Counsel that such supplemental agreement is legal, valid and
binding.
(b) The obligations of the Seller hereunder shall not be assignable nor
shall any Person succeed to the obligations of the Seller hereunder except for
mergers, consolidations, assumptions, conveyances or transfers in accordance
with the provisions of the foregoing paragraph.
Section 4.3 Limitation on Liability. The directors, officers, employees
or agents of the Seller shall not be under any liability to the Purchaser, the
Trust, the Trustee, the Certificateholders, the Certificate Owners, the
Receivables Purchasers, any Purchaser Representative, any Enhancement Provider
or any other Person hereunder or pursuant to any document delivered hereunder,
it being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement; provided, however, that this provision shall not protect the
officers, directors, employees, or agents of the Seller against any liability
which would otherwise be imposed by reason of willful misconduct, bad faith or
gross negligence in the performance of their duties. The Seller and any
director, officer, employee or agent may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder.
Section 4.4 Indemnification. The Seller shall indemnify and hold
harmless the Purchaser, the Trust and the Trustee, its officers, directors,
employees and agents from and against any loss, liability, expense, damage or
injury suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or based upon the arrangement created by this
Agreement, the Pooling and Servicing Agreement, any Supplement or any
Receivables Purchase Agreement arising out of any third-party action, claim,
suit or proceeding, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim, as though this Agreement, such Supplement or such Receivables Purchase
Agreement created a partnership under the New York Uniform Partnership Act in
which the Seller is a general partner; provided, however, that the Seller shall
not indemnify the Purchaser or the Trustee if such acts, omissions or alleged
acts or omissions constitute or are caused by fraud, gross negligence, or
willful misconduct by the Purchaser or the Trustee; provided, further, that the
Seller shall not indemnify the Trust or the Trustee for any liabilities, costs
or expenses with respect to any action taken by the Trustee at the request of
the Investor Certificateholders or Receivables Purchasers; and provided,
further, that the Seller shall not indemnify the Trust or the Trustee for any
liabilities, costs or expenses of the Trust or the Trustee arising under any tax
law,
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including without limitation any federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by the Trust in connection herewith to any taxing
authority. Any such indemnification shall not be payable from the assets of the
Trust. The provisions of this indemnity shall run directly to and be enforceable
by an injured party subject to the limitations hereof.
ARTICLE V
CONDITIONS TO PURCHASE
Section 5.1 Conditions to Purchase. The obligations of the Purchaser to
make its initial purchase of Receivables hereunder shall be subject to Seller
delivering to the Purchaser on or before the Effective Date such documents,
certificates and resolutions that the Purchaser is required to deliver to the
Trustee, any Purchaser Representative, Enhancement Provider or Rating Agency in
connection with the amendment and restatement of the Pooling and Servicing
Agreement as of the date of this Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination by the Seller. So long as no Series is
outstanding, the Seller may terminate all of its agreements to sell Receivables
hereunder to Purchaser by giving Purchaser and the Trustee not less than 15
days' prior written notice (or such shorter time as is acceptable to the
Trustee) of its election not to continue to sell Receivables to Purchaser;
provided that such notice shall specify the effective date of such termination.
Section 6.2 Automatic Termination. Unless otherwise agreed to by the
Seller and Purchaser in writing, the agreement of Seller to sell Receivables
hereunder, and the agreement of the Purchaser to purchase Receivables from
Seller hereunder, shall terminate automatically upon the termination of the
Trust as provided in Article XII of the Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments, etc. (a) The provisions of this Agreement may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Purchaser and the
Seller (with respect to an amendment) or by the Purchaser (with respect to a
waiver or consent by it); provided, that such action shall not, as evidenced by
an Opinion of Counsel for the Seller addressed and delivered to the Trustee and
each Purchaser Representative, adversely affect in any material respect the
interests of any Investor Certificateholder, any Receivables Purchaser or any
Enhancement Provider without the prior written consent of such Person; provided,
further, that the Rating Agency Condition shall have been satisfied with respect
to such amendment.
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(b) No failure or delay on the part of the Purchaser, the Seller or any
third party beneficiary in exercising any right, power or privilege hereunder or
under any other Transaction Document shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 7.2 Protection of Right, Title and Interest to the Purchaser.
(a) The Seller shall cause this Agreement, all certificates of
assignment, agreements and documents, and all amendments hereto and thereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Purchaser's right, title and interest in the
Receivables to be promptly recorded, registered and filed, and at all times to
be kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder in the Receivables. The Seller shall deliver
to the Purchaser and the Trustee file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Seller shall
cooperate fully with the Purchaser in connection with the obligations set forth
above and shall execute any and all documents reasonably required to fulfill the
intent of this subsection 7.2(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above materially
misleading within the meaning of Section 9-402(7) of the UCC, the Seller shall
give the Purchaser and the Trustee notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's interest in the Receivables and related property
conveyed hereunder and the perfection of the Purchaser's interest in the
Receivables and the proceeds thereof as contemplated by Section 1.1 hereof.
(c) The Seller shall give the Purchaser, the Trustee and each Purchaser
Representative prompt written notice of any relocation of any office from which
it services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to continue the perfection of the interests in the Receivables and the
proceeds thereof. The Seller shall at all times maintain each office from which
it services Receivables and its principal executive office within the United
States of America.
Section 7.3 GOVERNING LAW. THIS AGREEMENT 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,
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RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 7.4 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at, sent by facsimile to, sent by courier at or mailed by registered
mail, return receipt requested, (a) in the case of the Seller and the Servicer,
to Spirit of America National Bank, c/o Charming Shoppes, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, (b) in the case of the
Purchaser, to c/o Charming Shoppes, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, (c) in the case of the Trustee, to the
Corporate Trust Office, (d) in the case of the Enhancement Provider for a
particular Series, to the address, if any, specified in the related Supplement
or Receivables Purchase Agreement, or (e) in the case of the Purchaser
Representative for a particular Receivables Purchase Series, to the address, if
any, specified in the related Receivables Purchase Agreement.
Section 7.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.2, this Agreement may not be
assigned by the Seller without the prior written consent of the Purchaser, each
Purchaser Representative and the Holders of Investor Certificates evidencing
Undivided Trust Interests aggregating not less than 66 2/3% of the Investor
Interest of each Certificate Series on a Series by Series basis.
Section 7.7 Further Assurances. The Seller agrees to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Purchaser more fully to
effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 7.8 Non-petition Covenant. Notwithstanding any prior
termination of this Agreement, the Seller 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 Purchaser to invoke the process of any Governmental Authority for
the purpose of commencing or sustaining a case against the Trust or the
Purchaser 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 Purchaser or any substantial part of
its property or ordering the winding up or liquidation of the affairs of the
Purchaser or the Trust.
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Section 7.9 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser or the Trustee, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, and privileges provided by law.
Section 7.10 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 7.11 Third-Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, the Trustee, the
Certificateholders, the Receivables Purchasers, the Purchaser Representatives
and, to the extent provided in the related Supplement or Receivables Purchase
Agreement, any Enhancement Provider named therein, and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Section 7.12 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 7.13 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 7.14 Acknowledgment and Consent. (a) The Seller acknowledges
that, contemporaneously herewith, Purchaser is Conveying to the Trust all of
Purchaser's right, title and interest in, to and under the Receivables and the
related property conveyed pursuant hereto, pursuant to Section 2.1 of the
Pooling and Servicing Agreement. The Seller hereby consents to the Conveyance to
the Trust by Purchaser of all right, title and interest of Purchaser in, to and
under this Agreement, the Receivables and the related assets, including (i) the
right of Purchaser, at any time, to enforce this Agreement against the Seller
and the obligations of the Seller hereunder, (ii) the right to appoint a
successor to the Servicer at the times and upon the conditions set forth in the
Pooling and Servicing Agreement, and (iii) the right, at any time, to give or
withhold any and all consents, requests, notices, directions, approvals,
demands, extensions or waivers under or with respect to this Agreement, or the
obligations in respect of the Seller thereunder to the same extent as Purchaser
may do. Each of the Seller and the Purchaser acknowledges and agrees that (i)
under the terms of the Pooling and Servicing Agreement, the Purchaser
Representatives and Holders of Investor Certificates may direct the manner in
which the Trustee exercises its rights with respect to this Agreement or may
exercise such rights themselves, and (ii) the Trustee, the Certificateholders,
the Receivables Purchasers, the Purchaser Representatives and, to the extent
provided in the related Supplement or
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Receivables Purchase Agreement, to any Enhancement Provider named therein, are
express third party beneficiaries of the rights of the Purchaser arising
hereunder and under the other Transaction Documents to which the Seller is a
party. The Seller hereby acknowledges and agrees that it has no claim to or
interest in either of the Collection Account or any Series Account, except to
the extent it is entitled to receive Deferred Originator Payments as provided in
the Pooling and Servicing Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SPIRIT OF AMERICA NATIONAL BANK, as Seller
By: /s/
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address: c/o Charming Shoppes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇▇-▇▇▇▇
CHARMING SHOPPES RECEIVABLES CORP., as
Purchaser
By: /s/
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Address: c/o Charming Shoppes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇▇-▇▇▇▇
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APPENDIX A
DEFINITIONS
This is Appendix A to the Purchase and Sale Agreement dated as of
November 25, 1997, between Spirit of America National Bank, as Seller, and
Charming Shoppes Receivables Corp., as Purchaser (as amended, supplemented or
otherwise modified from time to time, the "Purchase Agreement").
1.1. Definitions. As used in the Purchase Agreement, the following
terms have the meanings as indicated:
"Additional Assignment" has the meaning set forth in Section 2.4(e) of
the Purchase Agreement.
"Dilution Amount" has the meaning specified in Section 3.2 of the
Purchase Agreement.
"Existing Assets" means (i) the Exchangeable Seller Certificate, (ii)
the Receivables existing on the Effective Date and arising from the Accounts,
(iii) all Related Assets with respect to such Receivables, and (iv) all right,
title and interest of the Seller (in its capacity as seller but not as servicer)
under the Prior PSA.
"Intercompany Balance" has the meaning set forth in Section 3.1(c) of
the Purchase Agreement.
"Outstanding Balance" means, at any time with respect to a Receivable,
the unpaid amount owed in respect thereof.
"Pooling and Servicing Agreement" means the Second Amended and Restated
Pooling and Servicing Agreement dated as of November 25, 1997, among the
Purchaser, Spirit of America National Bank, as Servicer, and First Union
National Bank, as Trustee, as amended, supplemented or otherwise modified from
time to time.
"Purchase Price" has the meaning set forth in Section 3.1 of the
Purchase Agreement.
"Purchase Termination Date" means the earlier to occur of (a) the date
specified by the Seller pursuant to Section 6.1 of the Purchase Agreement and
(b) any event referred to in Section 6.2 of the Purchase Agreement.
"Purchaser" has the meaning set forth in the preamble to the Purchase
Agreement.
"Reassignment" has the meaning specified in Section 2.5 of the Purchase
Agreement.
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"Related Assets" means, with respect to any Receivable, all monies due
or to become due with respect thereto, all Collections, all Recoveries, all
rights, remedies, powers, and privileges with respect to such Receivable, and
all proceeds of the foregoing.
"Removed Accounts" has the meaning specified in Section 2.5 of the
Purchase Agreement.
"Seller" has the meaning set forth in the preamble to the Purchase
Agreement.
"Spirit" has the meaning set forth in the preamble to the Purchase
Agreement.
1.2. Other Terms. All capitalized terms used but not otherwise defined
in the Purchase Agreement shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. In addition, the interpretive conventions set
forth in Sections 1.2.1, 1.2.2 and 1.2.3 of the Pooling and Servicing Agreement
shall apply to the interpretation of the Purchase Agreement.
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EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as of
___________ ___, _____ (this "Assignment") by and between SPIRIT OF AMERICA
NATIONAL BANK, a national banking association (the "Seller"), and Charming
Shoppes Receivables Corp., as Purchaser, pursuant to the Purchase Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, the Seller and the Purchaser are parties to the Purchase and
Sale Agreement, dated as of November 25, 1997 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, the Seller wishes to
designate Additional Accounts of the Seller to be included as Accounts and to
Convey the Receivables of such Additional Accounts, whether now existing or
hereafter created, to the Purchaser; and
WHEREAS, the Purchaser is willing to accept such designation and
Conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Purchaser hereby agree as follows:
1. Defined Terms. All terms defined in the Purchase Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
"Addition Cut Off Date" shall mean, with respect to the Additional
Accounts designated hereby, _______________ ___, ____.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ____________ _______, ________.
"Addition Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, ______________ ___, ____.
"Additional Accounts" shall mean the Additional Accounts designated
hereby.
2. Designation of Additional Accounts. The Seller shall
deliver, at its own expense, to the Purchaser not later than five Business Days
after the Addition Date, a computer file, microfiche or written list containing
a true and complete list of Accounts which as of the
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Addition Date shall be deemed to be Additional Accounts, such accounts being
identified by account number, Obligor name, Obligor address, and by the
aggregate amount of Receivables in such accounts as of the close of business on
the Addition Cut Off Date. Such file or list shall be delivered to the Purchaser
as confidential and proprietary, shall be marked as Schedule 1 to this
Assignment and, as of the Addition Date, shall be incorporated into and made a
part of this Assignment.
3. Conveyance of Receivables in Additional Accounts. The
Seller does hereby Convey to the Purchaser without recourse (except as expressly
provided herein and in the Purchase Agreement), all of its right, title and
interest in and to the Receivables now existing and hereafter created and
arising from time to time in connection with the Additional Accounts until the
Purchase Termination Date, all monies due or to become due with respect thereto,
all Collections, all Recoveries, all rights, remedies, powers and privileges
with respect to the Receivables in Additional Accounts, and all proceeds of the
foregoing.
In connection with such Conveyance, the Seller agrees to
record and file, at its own expense, a financing statement or financing
statements (or an amendment to such financing statement or financing statements)
(including any continuation statements with respect to such financing statements
when applicable) with respect to the Receivables now existing and hereafter
created in the Additional Accounts meeting the requirements of applicable state
law in such manner and in such jurisdictions as are necessary to perfect the
Conveyance of the Receivables in Additional Accounts to the Purchaser and the
first priority nature of the Purchaser's interest in the Receivables in
Additional Accounts, and to deliver a file-stamped copy of such financing
statement or continuation statement (or an amendment to such financing statement
or financing statements) or other evidence of such filing (which may, for
purposes of this Section 3, consist of telephone confirmation of such filing
followed by delivery of a file-stamped copy as soon as practicable) to the
Purchaser on or prior to the Addition Date, and in the case of any continuation
statements filed pursuant to this Section 3, as soon as practicable after
receipt thereof by the Seller.
In connection with such Conveyance, the Seller agrees, at its
own expense on or prior to the Addition Date, to indicate in the Pool Index File
maintained in its computer files that Receivables created in connection with the
Additional Accounts have been Conveyed to the Purchaser pursuant to this
Assignment. The Seller further agrees not to alter the file designation
referenced in this paragraph with respect to any Additional Account during the
term of this Assignment unless and until such Additional Account becomes a
Removed Account.
The parties intend that if, and to the extent that, such
Conveyance is not deemed to be a sale, the Seller shall be deemed hereunder to
have granted to the Purchaser a first priority perfected security interest in
all of the Seller's right, title and interest in, to and under the Receivables
now existing and hereafter created and arising from time to time in connection
with the Additional Accounts until the Purchase Termination Date, all monies due
or to become due with respect thereto, all Collections, all Recoveries, all
rights, remedies, powers and privileges
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with respect to the Receivables in Additional Accounts, and all proceeds of the
foregoing, and that this Assignment shall constitute a security agreement under
applicable law.
4. Acceptance by Purchaser.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest previously held by the Seller in and to the Receivables now
existing and hereafter created from time to time and arising in connection with
the Additional Accounts until the Purchase Termination Date, all monies due or
to become due with respect thereto, all Collections, all Recoveries, all rights,
remedies, powers and privileges with respect to the Receivables in Additional
Accounts, and all proceeds of the foregoing.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Purchaser as of the Addition Date:
(a) Organization and Good Standing. The Seller is a national
banking association duly organized and validly existing under the laws of the
United States of America and has full corporate power, authority and legal right
to own its properties and conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Assignment.
(b) Due Qualification. The Seller is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct its business, and has obtained all necessary
licenses and approvals with respect to the Seller required under applicable law.
(c) Due Authorization. The execution and delivery of this
Assignment by the Seller and the consummation of the transactions provided for
in this Assignment have been duly authorized by the Seller by all necessary
corporate action on its part.
(d) Enforceability. This Assignment constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
Debtor Relief Laws.
(e) No Conflict. The execution and delivery of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or any of its properties are bound.
(f) No Violation. The execution and delivery of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms
A-3
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hereof will not conflict with or violate in any material respect any
Requirements of Law applicable to the Seller.
(g) No Proceedings. There are no proceedings pending or, to
the best knowledge of the Seller, threatened against the Seller before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Assignment, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Seller, would materially and adversely affect the performance by
the Seller of its obligations under this Assignment, (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Assignment, or (v) seeking to affect adversely the
income tax attributes of the Trust.
(h) All Consents Required. All appraisals, authorizations,
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery of this
Assignment, the performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof, have been obtained.
(i) Solvency. No Insolvency Event with respect to the Seller
has occurred and the Conveyance by the Seller to the Purchaser of the
Receivables in the Additional Accounts has not been made in contemplation of the
occurrence thereof.
The representations and warranties set forth in this Section 5
shall survive the transfer and assignment of the respective Receivables in
Additional Accounts to the Purchaser.
6. Representations and Warranties of the Seller Relating to
the Receivables.
(a) The Seller hereby represents and warrants to the Purchaser
as of the date hereof:
(i) This Assignment constitutes either (A) a valid sale to the
Purchaser of all right, title and interest of the Seller in and to the
Receivables now existing and hereafter created and arising from time to
time in connection with the Additional Accounts until the Purchase
Termination Date, all monies due or to become due with respect thereto,
all Collections, all Recoveries, all rights, remedies, powers and
privileges with respect to the Receivables, and all proceeds of the
foregoing, and such property will be held by the Purchaser free and
clear of any Lien of any Person claiming through or under the Seller or
any of its Affiliates, or (B) a grant of a security interest (as
defined in the UCC as in effect in any applicable jurisdiction) in such
property to the Purchaser, which is enforceable with respect to the
Receivables now existing and hereafter created and arising from time to
time in connection with the Additional Accounts until the Purchase
Termination Date, all monies due or to become due with respect thereto,
all Collections, all Recoveries, all rights, remedies, powers and
privileges with respect to the Receivables, and all proceeds of the
foregoing, upon such creation. To the extent that
A-4
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this Assignment constitutes the grant of a security interest to the
Purchaser in such property, upon the filing of the financing statements
described in Section 3 and in the case of the Receivables hereafter
created, all monies due or to become due with respect thereto, all
Collections, all Recoveries, and the proceeds of the foregoing, upon
such creation, the Purchaser shall have a first priority perfected
security interest in such property (subject to Section 9-306 of the UCC
as in effect in any applicable jurisdiction).
(ii) Each Additional Account is an Eligible Account and each
Receivable in each such Additional Account is an Eligible Receivable.
(iii) Each Receivable in the Additional Accounts has been
Conveyed to the Purchaser in compliance, in all material respects, with
all Requirements of Law applicable to the Seller.
(iv) With respect to each Receivable in the Additional
Accounts, all consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Seller in connection with the
Conveyance of such Receivable to the Purchaser have been duly obtained,
effected or given and are in full force and effect.
(v) As of the Addition Date, Schedule 1 to this Assignment and
the related computer file or microfiche or written list referred to in
Section 3 of this Assignment is an accurate and complete listing in all
material respects of all the Additional Accounts, and the information
contained therein with respect to the identity of such Additional
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Addition Date, and as of the Addition
Date, the aggregate amount of Receivables in all the Additional
Accounts was $____________________.
(vi) No selection procedures believed by the Seller to be
materially adverse to the interests of the Purchaser, the Investor
Certificateholders or any Receivables Purchasers were utilized in
selecting the Additional Accounts from the available Eligible Accounts
from the Bank Portfolio.
(b) The representations and warranties set forth in this
Section 6 shall survive the Conveyance of any of the respective Receivables to
the Purchaser.
7. Conditions Precedent. The acceptance by the Purchaser set
forth in Section 4 and the amendment of the Purchase Agreement set forth in
Section 8 are subject to the satisfaction, on or prior to the Addition Date, of
each of the conditions precedent set forth in the Pooling and Servicing
Agreement, any Supplement or any Receivables Purchase Agreement.
8. Amendment of the Purchase Agreement. The Purchase Agreement
is hereby amended to provide that all references therein to the "Purchase
Agreement," to "this Agreement" and "herein" shall be deemed from and after the
Addition Date to be a dual
A-5
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reference to the Purchase Agreement as supplemented by this Assignment. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Purchase Agreement shall remain unamended and
shall continue to be, and shall remain, in full force and effect in accordance
with its terms and except as expressly provided herein shall not constitute or
be deemed to constitute a waiver of compliance with or a consent to
noncompliance with any term or provision of the Purchase Agreement.
9. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
10. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Receivables in Additional Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and year first
above written.
SPIRIT OF AMERICA NATIONAL BANK
By: ______________________________________
Name:
Title:
CHARMING SHOPPES RECEIVABLES
CORP.
By: ______________________________________
Name:
Title:
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Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
36
Schedule 2
to Assignment of
Receivables in
Additional Accounts
Officer's Certificate of an Officer
of Spirit of America National Bank
_______________________, a duly authorized officer of Spirit
of America National Bank (the "Seller"), hereby certifies and acknowledges on
behalf of the Seller that to the best of such officer's knowledge, the following
statements are true on _________________ ______, ______ (the "Addition Date"):
(a) The Seller has delivered to the Purchaser a written
assignment in substantially the form of Exhibit A to the Purchase and Sale
Agreement dated as of November 25, 1997 (the "Purchase Agreement"; any
capitalized term used but not otherwise defined herein shall have the meaning
specified in the Purchase Agreement) between Spirit of America National Bank,
Seller, and Charming Shoppes Receivables Corp., Purchaser, and has indicated in
its computer files that the Receivables created in connection with the
Additional Accounts have been Conveyed to the Purchaser.
(b) Each Additional Account is an Eligible Account and each
Receivable in each such Additional Account is an Eligible Receivable.
(c) No selection procedures believed by the Seller to be
materially adverse to the interests of the Purchaser, Investor
Certificateholders or any Receivables Purchasers were utilized in selecting the
Additional Accounts from the available Eligible Accounts from the Bank
Portfolio.
IN WITNESS WHEREOF, I have hereunto set my hand this
___________ day of ___________________, ___________.
SPIRIT OF AMERICA NATIONAL
BANK
By: ______________________________
Name:
Title:
37
EXHIBIT B
FORM OF REASSIGNMENT OF INELIGIBLE RECEIVABLES
REASSIGNMENT NO. OF INELIGIBLE RECEIVABLES, dated as of______
_______, ____ (this "Reassignment") by and among CHARMING SHOPPES RECEIVABLES
CORP., a Delaware corporation ("CSRC"),_____ , a __________ (the "Assignee"),
and SPIRIT OF AMERICA NATIONAL BANK, a national banking association (the
"Seller"), pursuant to the Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Seller and CSRC are parties to the Purchase and
Sale Agreement, dated as of November 25, 1997 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, CSRC wishes to
reassign certain Receivables (the "Ineligible Receivables") whether now existing
or hereafter created, from CSRC to the Assignee; and
WHEREAS, CSRC is willing to reconvey the Ineligible
Receivables, and the Assignee is willing to accept such reconveyance of
Ineligible Receivables, subject to the terms and conditions hereof.
NOW, THEREFORE, CSRC, the Assignee and the Seller hereby agree
as follows:
1. Defined Terms. All terms defined in the Purchase Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
"Removal Cut Off Date" shall mean, with respect to the
Ineligible Receivables designated hereby,_______ ,_______ .
"Removal Date" shall mean, with respect to the Ineligible
Receivables designated hereby,_________ ,________ .
"Removal Notice Date" shall mean, with respect to the
Ineligible Receivables designated hereby,_______ ,_______ .
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"Ineligible Receivables" shall mean the Ineligible Receivables
designated hereby.
2. Designation of Ineligible Receivables. The Seller shall
have delivered to CSRC on or prior to the Removal Date, a computer file,
microfiche list or written list containing a true and complete list of
Receivables which as of the Removal Date shall be deemed to be Ineligible
Receivables, such Ineligible Receivables being identified by the related account
number and by the aggregate amount of Ineligible Receivables in each such
Account as of the close of business on the Removal Cut Off Date, and, if less
than all of the Receivables in an Account are to be Conveyed by CSRC hereunder,
such other means of identification which shall be adequate to distinguish the
Ineligible Receivables from the other Receivables in such Account. Such list
shall be marked as Schedule 1 to this Reassignment and, as of the Removal Date,
shall be incorporated into and made a part of this Reassignment.
3. Conveyance of Ineligible Receivables.
(a) CSRC does hereby Convey to the Assignee without recourse,
all of its right, title and interest in and to the Ineligible Receivables (and,
in the event that all the Receivables of an account are Ineligible Receivables,
all Receivables now existing and hereafter created and arising from time to time
in connection with such account until the Purchase Termination Date, all monies
due or to become due with respect thereto, all Collections, all Recoveries, all
rights, remedies, powers and privileges with respect to such Ineligible
Receivables, and all proceeds of the foregoing.
(b) In connection with such transfer, CSRC agrees to execute
and deliver to the Assignee on or prior to the date of this Reassignment, a
termination statement with respect to the Ineligible Receivables (and, in the
event that all the Receivables of an account are Ineligible Receivables, all
Receivables now existing and hereafter created in such accounts) designated
hereby (which may be a single termination statement with respect to all such
Ineligible Receivables) evidencing the release by CSRC of its Lien on the
Ineligible Receivables, and meeting the requirements of applicable state law, in
such manner and such jurisdictions as are necessary to remove such Lien.
4. Representations and Warranties of the Seller. The Seller
(and the Assignee, but only with respect to subsection 4(a)) hereby represent
and warrant to the Purchaser as of the Removal Date:
(a) Enforceability. This Reassignment constitutes a legal,
valid and binding obligation of the Seller (or the Assignee, as applicable),
enforceable against the Seller (or the Assignee, as applicable) in accordance
with its terms, except as such enforceability may be limited by Debtor Relief
Laws.
(b) Selection Procedures. No selection procedures believed by
the Seller to be materially adverse to the interests of the Purchaser, the
Investor Certificateholders, the
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or any Enhancement Provider were utilized in selecting
the Ineligible Receivables designated hereby.
(c) Schedule 1 Information. Schedule 1 to this Reassignment is
an accurate and complete listing in all material respects of all the Ineligible
Receivables as of the Removal Cut Off Date, and the information contained
therein with respect to the identity of such Ineligible Receivables and, if
applicable, the related accounts, is true and correct in all material respects
as of the Removal Cut Off Date, and as of the Removal Cut Off Date, the
aggregate amount of Ineligible Receivables was $ _____________ .
5. Conditions Precedent. The Conveyance of Ineligible
Receivables set forth in Section 3 and the amendment of the Purchase Agreement
set forth in Section 6 are subject to the satisfaction, on or prior to the
Removal Date, of each of the conditions precedent to such removal set forth in
the Purchase Agreement.
6. Amendment of the Purchase Agreement. The Purchase Agreement
is hereby amended to provide that all references therein to the "Purchase
Agreement," to "this Agreement" and "herein" shall be deemed from and after the
Removal Date to be a dual reference to the Purchase Agreement as supplemented by
this Reassignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Purchase
Agreement shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to noncompliance with any term or provision of the
Purchase Agreement.
7. Counterparts. This Reassignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
8. Governing Law. This Reassignment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Ineligible Receivables to be duly executed and delivered by
their respective duly authorized officers on the day and year first above
written.
SPIRIT OF AMERICA NATIONAL BANK
By: ___________________________________
Name:
Title:
CHARMING SHOPPES RECEIVABLES CORP.
By: ___________________________________
Name:
Title:
[Assignee]
By: ___________________________________
Name:
Title:
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Schedule 1
to Reassignment of
Ineligible Receivables
INELIGIBLE RECEIVABLES
42
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
REASSIGNMENT NO. ___ OF RECEIVABLES IN REMOVED ACCOUNTS, dated as of
____________ (this "Reassignment") by and among CHARMING SHOPPES RECEIVABLES
CORP., a Delaware corporation ("CSRC"),_______ , a _________ (the "Assignee"),
and SPIRIT OF AMERICA NATIONAL BANK, a national banking association (the
"Seller"), pursuant to the Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Seller and CSRC are parties to the Purchase and Sale
Agreement, dated as of November 25, 1997 (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise modified,
the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, the Seller wishes to
remove all Receivables from certain designated Accounts of the Seller (the
"Removed Accounts") and to cause CSRC to reconvey the Receivables of such
Removed Accounts, whether now existing or hereafter created, from CSRC to the
Assignee; and
WHEREAS, CSRC is willing to accept such designation and to reconvey the
Receivables in the Removed Accounts, and the Assignee is willing to accept the
reconveyance of such Receivables, subject to the terms and conditions hereof.
NOW, THEREFORE, CSRC, the Assignee and the Seller hereby agree as
follows:
1. Defined Terms. All terms defined in the Purchase Agreement
and used herein shall have such defined meanings when used herein, unless
otherwise defined herein.
"Removal Cut Off Date" shall mean, with respect to the Removed
Accounts designated hereby, ___________ __, ____.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, ___________ __, ____.
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"Removal Notice Date" shall mean, with respect to the removed
Accounts designated hereby, ___________ __, ____.
"Removed Accounts" shall mean the Removed Accounts designated
hereby.
2. Designation of Removed Accounts. The Seller shall have
delivered to CSRC on or prior to the Removal Date, a computer file, microfiche
list, or written list containing a true and complete list of Accounts which as
of the Removal Date shall be deemed to be Removed Accounts, such accounts being
identified by account number and by the aggregate amount of Receivables in such
accounts as of the close of business on the Removal Cut Off Date. Such list
shall be marked as Schedule 1 to this Reassignment and, as of the Removal Date,
shall be incorporated into and made a part of this Reassignment.
3. Conveyance of Receivables in Removed Accounts.
(a) CSRC does hereby Convey to the Assignee without recourse,
all of its right, title and interest in and to the Receivables now existing and
hereafter created and arising from time to time in connection with the Removed
Accounts until the Purchase Termination Date, all monies due or to become due
with respect thereto, all Collections, all Recoveries, all rights, remedies,
powers and privileges with respect to the Receivables in Removed Accounts, and
all proceeds of the foregoing.
(b) In connection with such transfer, CSRC agrees to execute
and deliver to the Assignee on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables now existing and hereafter
created in the Removed Accounts designated hereby (which may be a single
termination statement with respect to all such Receivables) evidencing the
release by CSRC of its Lien on the Receivables in the Removed Accounts, and
meeting the requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such Lien.
4. Representations and Warranties of the Seller and the
Assignee. The Seller (and the Assignee, but only with respect to subsection
4(a)) hereby represent and warrant to CSRC as of the Removal Date:
(a) Enforceability. This Reassignment constitutes a legal,
valid and binding obligation of the Seller (or the Assignee, as applicable),
enforceable against the Seller (or the Assignee, as applicable) in accordance
with its terms, except as such enforceability may be limited by Debtor Relief
Laws.
(b) Selection Procedures. No selection procedures believed by
the Seller to be materially adverse to the interests of CSRC, the Investor
Certificateholders, the Receivables Purchasers or any Enhancement Provider were
utilized in selecting the Removed Accounts designated hereby.
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(c) Schedule 1 Information. Schedule 1 to this Reassignment is
an accurate and complete listing in all material respects of all the Removed
Accounts as of the Removal Cut Off Date, and the information contained therein
with respect to the identity of such Removed Accounts and the Receivables
existing thereunder is true and correct in all material respects as of the
Removal Cut Off Date, and as of the Removal Cut Off Date, the aggregate amount
of Receivables in all the Removed Accounts was $______________.
5. Conditions Precedent. The Conveyance of Receivables set
forth in Section 3 and the amendment of the Purchase Agreement set forth in
Section 6 are subject to the satisfaction, on or prior to the Removal Date, of
each of the conditions precedent to such removal set forth in the Purchase
Agreement.
6. Amendment of the Purchase Agreement. The Purchase Agreement
is hereby amended to provide that all references therein to the "Purchase
Agreement," to "this Agreement" and "herein" shall be deemed from and after the
Removal Date to be a dual reference to the Purchase Agreement as supplemented by
this Reassignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Purchase
Agreement shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to noncompliance with any term or provision of the
Purchase Agreement.
7. Counterparts. This Reassignment may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
8. Governing Law. This Reassignment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables in Removed Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and year first
above written.
SPIRIT OF AMERICA NATIONAL BANK
By: __________________________________
Name:
Title:
CHARMING SHOPPES RECEIVABLES CORP.
By: __________________________________
Name:
Title:
[Assignee]
By: __________________________________
Name:
Title:
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Schedule 1
to Assignment of
Receivables in
Removed Accounts
REMOVED ACCOUNTS