exhibit102oct302009.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT
10.2

          


        

      

    


    


     

    


     

    SIXTH AMENDMENT TO SECOND
AMENDED AND RESTATED

    POOLING AND SERVICING
AGREEMENT

     

    THIS
SIXTH AMENDMENT dated as of October 30, 2009 to the SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT (as defined below) (this “Amendment”), is among
(i) U.S. Bank National Association, as Trustee (“Trustee”), (ii)
solely with respect to the amendments described in Section 3(a) of this
Amendment, Charming Shoppes Receivables Corp. (“CSRC”) and Spirit of
America, Inc. (“SOAI”) and (iii)
solely with respect to the amendments described in Section 3(b) of this
Amendment, World Financial Network National Bank (“WFNNB”) and WFN
Credit Company, LLC (“WFN
SPV”).  Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned thereto in the Existing Agreement
(defined below).

     

    W I T N E
S S E T H

    


    WHEREAS,
CSRC, SOAI and Trustee are parties to that certain Second Amended and Restated
Pooling and Servicing Agreement, dated as of November 25, 1997 (as amended
heretofore from time to time, the “Existing Agreement”);
and

     

    WHEREAS,
the parties hereto desire to amend the Existing Agreement and the Supplements
related to the Series 2004-1 Certificates and the Series 2007-1 Certificates
(respectively, the “Series 2004-1
Supplement” and “Series 2007-1
Supplement”) in certain respects as set forth herein.

     

    NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:

     

    SECTION
1. Amendments to the Existing
Agreement.  (a) The following definitions from Section 1.1 of
the Existing Agreement are hereby amended and restated in their entirety to read
as follows or added and inserted in alphabetical order into Section 1.1 of the
Existing Agreement, as applicable:

     

    “Account” shall mean a
revolving credit card account originated by or acquired by an Originator, in
each case including, without limitation, accounts which have been written off as
uncollectible, issued to an Obligor pursuant to a Cardholder Agreement between
the Originator (or the Originator’s permitted successors and assigns) and any
Person, which account is an Eligible Account on the Initial Cut Off Date (or, in
the case of Additional Accounts, as of the applicable Addition Cut Off Date),
and which is identified by account number, Obligor name, Obligor address and
Receivable balance as of the Cut Off Date (or, in the case of Additional
Accounts, as of the applicable Addition Cut Off Date) in each computer file or
microfiche list delivered to the Trustee by the Servicer pursuant to Section 2.1
or 2.6.  The
term Account shall include each

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “Renumbered
Account”.  The term “Account” shall be deemed to refer to an
Additional Account only from and after the Addition Date with respect thereto,
and the term “Account” shall be deemed to refer to any Removed Account only
prior to the Removal Date with respect thereto.

     

    “Acquired Portfolio”
shall mean a portfolio of Accounts acquired by the Originator after September 1,
2007 from any Person (or group of affiliated Persons) that is not, (i) with
respect to portfolios acquired prior to the Transfer Date, as of September 1,
2007, an Affiliate of Charming Shoppes, Inc. and (ii) with respect to portfolios
acquired on or after the Transfer Date, as of the date of acquisition, an
Affiliate of WFNNB.

     

    “Administrative
Servicer” means ADS Alliance Data Systems, Inc., a Delaware corporation,
and its successors and assigns.

     

    “Administrative Servicer
Agreement” means the Service Agreement, between WFNNB and the
Administrative Servicer, dated as of May 15, 2008, as such agreement may be
amended, supplemented or otherwise modified from time to time.

     

    “Affiliated Brand”
means any brand name or trademark now owned or licensed or hereafter developed,
licensed or acquired by Charming Shoppes, Inc. or its present or future
Affiliates, which is used primarily for women’s apparel sales; it being
understood and agreed that as of the date hereof “Affiliated Brand” includes,
but is not limited to, Fashion Bug, Fashion Bug Plus, Lane Bryant, Lane Bryant
Outlet, Lane Bryant Woman, Lane Bryant Catalog, Cacique, Petite Sophisticate,
Petite Sophisticate Outlet, Figure Magazine, Catherines and Catherines Plus
Sizes.

     

    “Cardholder
Guidelines” shall mean, at any time, the policies and procedures of the
applicable Originator (and its permitted successors and assigns) relating to the
operation of its credit card business in effect on the date hereof, including,
without limitation, the policies and procedures for determining the
creditworthiness of potential and existing credit card customers, and relating
to the maintenance of credit card accounts and collection of credit card
receivables, as such policies and procedures may be amended from time to
time.

     

    “Originator” shall
mean, as applicable, Spirit of America National Bank, a national banking
association, or WFNNB and their permitted successors and assigns.

     

    “Seller” shall mean
WFN Credit Company, LLC, a Delaware corporation, and its permitted successors
and assigns.

     

    “Store” shall mean a
retail location of any Affiliate of Charming Shoppes , Inc. or
WFNNB.

     

    “Transfer Date” has
the meaning set forth in Section
8.9.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    “Trust” shall mean the
World Financial Network Credit Card Master Trust II created by the Prior PSA and
this Agreement (formerly known as the Charming Shoppes Master Trust), the corpus
of which shall consist of the Receivables now existing or 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 such
Receivables, all rights, remedies, powers and privileges of the Seller under the
Purchase Agreement, such funds as from time to time are deposited in the
Collection Account and any Series Account and the rights to any Enhancement with
respect to any Series, and all proceeds of the foregoing; provided, that the
corpus of the Trust shall not include any undivided percentage ownership
interest in Receivables to the extent Conveyed by the Trust pursuant to any
Receivables Purchase Agreement; provided further, that any
Series Account or Enhancement shall be held by the Trust for the benefit of the
related Series.

     

    “WFN SPV” has the
meaning set forth in Section
7.5.

     

    “WFNNB” has the
meaning set forth in Section
3.5.

     

    (b) The word
“Trust” is hereby deleted and replaced with the phrase “Trust and Trustee, for
the benefit of the Trust,” where such word first appears in each of the first
paragraph and the fourth paragraph of Section 2.1 of the Existing
Agreement.

     

    (c) Amendments
to Section 2.5 of the Existing Agreement.

     

    (i) Clause
(a) of Section 2.5(l)(i) is hereby amended in its entirety to read as
follows:

     

    (a)
observe the corporate procedures required by its certificate of formation, its
limited liability company agreement and the limited liability company law of the
State of Delaware, including, without limitation, holding separate director and
member meetings from those of any other Person and otherwise ensuring at all
times that it is maintained as a separate corporate entity from any other Person
and

     

    (ii) Clause
(x) of Section 2.5(l) of the Existing Agreement is hereby amended in its
entirety to read as follows:

     

    (x)  select
and at all times maintain as its Independent Director (as defined in the
Seller’s limited liability company agreement) a Person who meets the following
qualifications (which qualifications are in addition to those set forth in its
limited liability company agreement):  the Independent Director shall
have (a) prior experience as an independent director for an entity whose
charter or organizational documents require the unanimous written consent of all
independent directors thereof before such entity could consent to the
institution of bankruptcy or insolvency proceedings against it or could file a
petition seeking relief under any applicable federal or state law relating to
bankruptcy, and (b) at least three years of employment experience with one
or more entities that provide, in the ordinary course of their respective
businesses, advisory, management or placement services to issuers of
securitization or structured finance instruments, agreements or
securities.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (d) Amendments
to Section 3.5 of the Existing Agreement.

     

    The
following new paragraph is inserted following Section 3.5 of the Existing
Agreement:

     

    Notwithstanding
the provisions of the preceding paragraph, on the Transfer Date, SOAI, as the
Servicer, shall deliver to the Trustee, each Purchaser Representative and each
Enhancement Provider an Officer’s Certificate in the form described in the
preceding paragraph with respect to the period from January 1, 2009 to the
Transfer Date, upon which delivery SOAI’s obligations under this Section 3.5 shall
cease.  For the avoidance of doubt, World Financial Network National
Bank (“WFNNB”)
shall deliver the Officer’s Certificate required under this Section 3.5 with
respect to the period from the Transfer Date through the calendar year ending
December 31, 2009, in connection with WFNNB’s assumption of servicing duties on
the Transfer Date under Section 8.9
hereof.

     

    (e) The
following Section 7.5 is hereby added to the Existing Agreement:

     

    Assignment of Seller’s
Duties.  It is understood and agreed that effective as of the
Transfer Date, CSRC and WFN Credit Company, LLC (“WFN SPV”) will enter
into an assignment and assumption agreement, substantially in the form of
Exhibit L hereto, under which CSRC will assign to WFN SPV all of CSRC’s rights
and obligations as Seller (which rights and obligations constitute substantially
all of CSRC’s property and assets) and WFN SPV will accept and assume such
rights and obligations.  From and after the Transfer Date, (i) except
to the extent provided in such agreement with respect to events arising out of
its actions or omissions to act as Seller occurring before the Transfer Date,
CSRC shall be released from all obligations of the Seller, (ii) CSRC shall cease
to be a party to this Agreement; provided that nothing herein shall release CSRC
of any liability for any of its actions (or omissions to act) as Seller prior to
the Transfer Date, and (iii) subject to the foregoing clauses (i) and (ii) and
except as the context shall require, references in this Agreement and the other
Transaction Documents to Seller or to Charming Shoppes Receivables Corp., in its
capacity as Seller, shall be deemed to be references to WFN SPV in such
capacity.

     

    (f) The
following Section 8.9 is hereby added to the Existing Agreement:

     

    Section
8.9.  Assignment of Servicing
Duties.  It is understood and agreed that SOAI and WFNNB will
enter into an assignment and assumption agreement, substantially in the form of
Exhibit M hereto, under which SOAI will assign to WFNNB, all of SOAI’s rights
and obligations as Servicer (which rights and obligations constitute
substantially all of SOAI’s property and assets), and WFNNB will acquire and
assume such rights and obligations.  From and after the date of
effectiveness of such assignment and assumption agreements (the “Transfer
Date”), (i) except to the extent provided in such agreement with respect to its
actions or omissions to act as Servicer occurring before the Transfer Date, SOAI
shall be released from all obligations of the Servicer, (ii) SOAI shall cease to
be a party to this Agreement; provided that nothing herein shall
relieve

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SOAI of
any liability for any of its actions (or omissions to act) as Servicer prior to
the Transfer Date, and (iii) subject to the foregoing clauses (i) and (ii) and
except as the context shall require, references in this Agreement and the other
Transaction Documents to the Servicer or to Spirit of America, Inc., in its
capacity as Servicer, shall be deemed to be references to WFNNB in such
capacity.

     

    (g) Section
13.11 of the Existing Agreement is hereby amended by adding the words “, any
Investor Certificateholder” following the words “Purchaser Representative” where
they appear in such section.

     

    (h) The
following Section 13.20 is hereby added to the Existing Agreement:

     

    Section
13.20.  Subordination.  Each
Certificateholder by accepting an Investor Certificate acknowledges and agrees
that such Investor Certificate represents an obligation of the Trust and does
not represent an interest in any assets of the Seller (including by virtue of
any deficiency claim in respect of obligations not paid or otherwise satisfied
from the corpus of the Trust and proceeds thereof).  In furtherance of
and not in derogation of the foregoing, to the extent the Seller enters into
other securitization transactions, each Certificateholder by accepting a
Certificate acknowledges and agrees that it shall have no right, title or
interest in or to any assets (or interest therein) conveyed or purported to be
conveyed by the Seller to another securitization trust or other Person or
Persons in connection therewith (whether by way of a sale, capital contribution
or by virtue of the granting of a lien) (“Other Assets”).  To the
extent that, notwithstanding the agreements and provisions contained in the
preceding sentences of this subsection, any Certificateholder either (i) asserts
an interest or claim to, or benefit from, Other Assets, whether asserted against
or through the Seller or any other Person owned by the Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of
the Federal Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), and whether deemed asserted against or through the
Seller or any other Person owned by the Seller, then each Certificateholder by
accepting a Certificate further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of the
Seller which, under the terms of the relevant documents relating to the
securitization of such Other Assets, are entitled to be paid from, entitled to
the benefits of, or otherwise secured by such Other Assets (whether or not any
such entitlement or security interest is legally perfected or otherwise entitled
to a priority of distribution or application under applicable law, including
insolvency laws, and whether asserted against the Seller or any other Person
owned by the Seller), including, the payment of post-petition interest on such
other obligations and liabilities.  This subordination agreement shall
be deemed a subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code.  Each Certificateholder further acknowledges and
agrees that no adequate remedy at law exists for a breach of this Section 13.20 and the
terms of this Section
13.20 may be enforced by an action for specific performance.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (i) Schedule
I to this Amendment is hereby added to the Existing Agreement as Exhibit L
thereto.

     

    (j) Schedule
II to this Amendment is hereby added to the Existing Agreement as Exhibit M
thereto.

     

    (k) Exhibit A
to the Existing Agreement is hereby replaced in its entirety by Schedule III
attached hereto.

     

    SECTION
2. Change of Address and Waiver
of Notice under the Existing Agreement.  Following the
effectiveness of the amendment described in Section 1 hereof, pursuant to
Section 2.5(j) of the Existing Agreement, WFN SPV, as Seller, and WFNNB, as
Servicer, hereby designate the following additional addresses as location of
records concerning the Receivables:

     

    If to WFN
SPV, to:

    


    WFN
Credit Company, LLC

     

    3100
Easton Square Place, #3108

     

    Columbus,
Ohio 43219

     

    With a
copy (which shall not constitute notice) to:

     

    World
Financial Network National Bank

     

    3100
Easton Square Place

     

    Columbus,
OH  43219

     

    Attention:
General Counsel

     

    If to
WFNNB, to:

    


    3100
Easton Square Place

     

    Columbus,
OH  43219

     

    Attention:
President

     

    With a
copy (which shall not constitute notice) to:

     

    World
Financial Network National Bank

     

    3100
Easton Square Place

     

    Columbus,
OH  43219

     

    Attention:
General Counsel

     

    The
Trustee hereby waives the requirement of 30 days notice of such change of
address.

     

    SECTION
3. Amendments to Series 2004-1
Supplement.  Section 16(a) of the Series 2004-1 Supplement is
hereby amended by adding the words “the Seller, Affiliates thereof  or”
after the word “except” where such word appears in the third paragraph of such
section.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SECTION
4. Amendments to Series 2007-1
Supplement.  Section 16(a) of the Series 2007-1 Supplement is
hereby amended by adding the words “the Seller, Affiliates thereof  or”
after the word “except” where such word appears in the third paragraph of such
section.

     

    SECTION
5. Effectiveness.

     

    (a) The
amendments set forth in clauses (e), (f), (i) and (j) of Section 1, Section 3 and Section 4 shall
become effective on the date when all of the following shall have occurred: (i)
the Trustee receives counterparts of this Amendment executed by the Trustee,
SOAI and CSRC, (ii) the assignment and assumption agreements described in
clauses (i) and (j) of Section 1 hereof
become effective, (iii) each other condition precedent specified in Section 13.1 of the
Existing Agreement and any other conditions precedent to the amendments set
forth in Section 1 specified in any other Transaction Document to the
effectiveness of any amendment to the Existing Agreement shall have been
satisfied.

     

    (b) Immediately
following the effectiveness of the amendments described in Section 3(a) of this
Amendment, the amendments set forth in clauses (a) through (d), (g), (h) and (k)
of Section 1
and Section 2
shall become effective when the Trustee receives counterparts of this Amendment
executed by WFNNB and WFN SPV.

     

    SECTION
6. Governing
Law.   THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

     

    SECTION
7. Severability.  Each
provision of this Amendment shall be severable from every other provision of
this Amendment for the purpose of determining the legal enforceability of any
provision hereof, and the unenforceability of any provision hereof, and the
unenforceability of one or more provisions of this Amendment in one jurisdiction
shall not have the effect of rendering such provision or provisions
unenforceable in any other jurisdiction.

     

    SECTION
8. Ratification of the Existing
Agreement.  From and after the date hereof, each reference in
the Existing Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or
words of like import, and references to the Existing Agreement in any other
document, instrument or agreement executed and/or delivered in connection
therewith, shall, in each case, mean and be a reference to the Existing
Agreement as amended hereby.  Except as otherwise amended by this
Amendment, the Existing Agreement shall continue in full force and effect and is
hereby ratified and confirmed.

     

    SECTION
9. Counterparts.  This
Amendment may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.

     

    [Remainder
of page intentionally left blank.]

     

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective duly authorized officers as of the date and year
first written.

     

    Solely
with respect to the amendments described in Section 5(a) of this
Amendment:

     

    
      	
              CHARMING SHOPPES RECEIVABLES
      CORP.

            
	 
      
	
              By:                                                                           

            
	
              Name:  Eric
      M. Specter

            
	
              Title:    President

            
	 
      
	 
      
	
              SPIRIT OF AMERICA,
      INC.

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:  Eric
      M. Specter

            
	
              Title:    President

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              U.S. BANK NATIONAL
      ASSOCIATION,

            
	
              not
      in its individual capacity but solely as the

              Trustee

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:

            
	
              Title:

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Solely
with respect to the amendments described in Section 5(b) of this
Amendment:

     

    


    


    
      	
              WFN
      CREDIT COMPANY, LLC

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:

            
	
              Title:

            
	 
      
	 
      
	
              WORLD
      FINANCIAL NETWORK NATIONAL BANK

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:

            
	
              Title:

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Schedule
I

    


    EXHIBIT
L

    


    [Form of
Assignment and Assumption Agreement]

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Schedule
II

    


    EXHIBIT
M

    


    [Form of
Assignment and Assumption Agreement]

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Schedule
III

    EXHIBIT
A

     

    [FORM OF EXCHANGEABLE SELLER
CERTIFICATE]