exhibit107oct302009.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT
10.7

        

      

    


    


     

    SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED

    POOLING AND SERVICING
AGREEMENT

     

    THIS
SECOND AMENDMENT dated as of May 8, 2001 to the SECOND AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT (as defined below), (this “Amendment”), is among
Charming Shoppes Receivables Corp., as Seller (“Seller”), Spirit of
America, Inc., as Servicer (“Servicer”), and First
Union National Bank, as Trustee (“Trustee”).  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,
Seller, Servicer and Trustee are parties to that certain Second Amended and
Restated Pooling and Servicing Agreement, dated as of November 25, 1997 (as
amended July 22, 1999, the “Existing Agreement”).

     

    WHEREAS,
Seller, Servicer and Trustee desire to amend the Existing Agreement 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.    Amendment.  (a)  Section
1.1 of the Existing Agreement is hereby amended by adding the following
definition in appropriate alphabetical order:

     

    “QSPE” shall mean a
“qualifying SPE” within the meaning of the Statement of Financial Accounting
Standards No. 140, as amended, modified, supplemented or replaced from time to
time.

     

    (b)
Clause (vi) of the definition of “Permitted Investment” set forth in Section 1.1
of the Existing Agreement is hereby amended by adding the following proviso
immediately prior to the period at the end thereof:

     

    “; and
provided, further, such
investment would not cause the Trust to fail to be a QSPE”.

     

    (c) Section 2.7(b) of
the Existing Agreement is hereby amended in its entirety to read in full as set
forth below:

     

    “(b)           The
Seller shall be permitted to designate and require reassignment to it of the
Receivables from Removed Accounts only 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 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 Trustee
(with a copy to each Purchaser Representative) (A) for execution, a written
assignment in substantially the form of Exhibit E-1 (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 as of each Removal Date that (x)(i) Accounts
(or administratively convenient groups of Accounts, such as billing cycles) were
chosen for removal randomly or otherwise not on a basis intended to select
particular Accounts or groups of Accounts for any reason other than
administrative convenience and (ii) no selection procedure was used by the
Seller which is materially adverse to the interests of the Investor
Certificateholders or any Receivables Purchasers or any Enhancement Provider or
(y) Accounts were selected because of a third-party cancellation, or expiration
without renewal, of an affinity or private-label arrangement;

     

    (iv)           on
or before the tenth Business Day prior to the Removal Date, each Rating Agency
shall have received notice of such proposed removal of the Receivables of such
Accounts and the Seller shall have received written evidence that the Rating
Agency Condition has been satisfied;

     

    (v)           the
Seller shall have delivered to 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;

     

    (vi)           after
giving effect to such removal, the Seller Interest shall be greater than or
equal to zero; and

     

    (vii)           no
Early Amortization Event shall have occurred with respect to any
Series.

    


    Upon
satisfaction of the above conditions, the Trustee shall execute and deliver the
Reassignment to the Seller (with a copy to each Purchaser Representative), and
the Receivables from the Removed Accounts shall no longer constitute a part of
the Trust.”

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (d)           Section 12.1(c) of
the Existing Agreement is hereby amended by deleting the third sentence thereof
in its entirety.

    


    (e)           Section 12.5(c) of
the Existing Agreement is hereby amended by adding the phrase “from Collections”
immediately after the phrase “deposited or caused to be deposited” in the first
sentence in clause
(i) thereof.

     

    (f)           Section 13.1 of the
Existing Agreement is hereby amended as follows:

     

    (i)           paragraph (a) of
Section 13.1 is
hereby amended by inserting the following proviso immediately prior to the
period at the end thereof:

     

    “; and
provided, further, such
amendment would not cause the Trust to fail to be a QSPE”.

     

    (ii)           paragraph (c) of
Section 13.1 is
hereby amended by inserting the following sentence at the end
thereof:

     

    “No
Supplement or Receivables Purchase Agreement shall be amended, if the effect of
such amendment would be to cause the Trust to fail to be a QSPE, without the
consent of Holders or Receivables Purchasers, as applicable, specified in such
Supplement or Receivables Purchase Agreement for amendments that require
consent.”

     

    SECTION 2.  Effectiveness.  The
amendments set forth in Section 1 shall
become effective on the date when the Servicer receives counterparts of this
Amendment executed by each of the parties hereto and each other condition
precedent specified in Section 13.1 to the
effectiveness of any amendment to the Existing Agreement shall have been
satisfied.

     

    SECTION
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, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

     

    SECTION
4.  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
5.  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
6.  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.

     

    
      	
              CHARMING
      SHOPPES RECEIVABLES CORP.,

            
	
              as
      Seller

            
	
              By:                                                                           

            
	
              Name:

            
	
              Title:

            
	 
	
              SPIRIT
      OF AMERICA, INC.,

            
	
              as
      Servicer

            
	
              By:                                                                           

            
	
              Name:

            
	
              Title:

            
	 
	
              FIRST
      UNION NATIONAL BANK,

            
	
              as
      Trustee

            
	
              By:                                                                           

            
	
              Name:

            
	
              Title: