exhibit104oct302009.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT
10.4

          


        

      

    


    CHARMING
SHOPPES MASTER TRUST

     

    SERIES
1999-2 PAYOFF AND
RELEASE AGREEMENT

     

    


     

    Dated as
of October 25, 2009

     

    


     

    among

     

    SPIRIT OF
AMERICA, INC.,

     

    as
Servicer

     

    CHARMING
SHOPPES RECEIVABLES CORP.,

     

    


     

    as Seller
and Class B Purchaser,

     

    


     

    CLIPPER
RECEIVABLES COMPANY, LLC,

     

    as the
Class A Purchaser,

     

    


     

    STATE
STREET BANK AND TRUST COMPANY (as successor to State Street Global Markets,
LLC)

     

    as
Administrator for the Class A Purchaser

     

    


     

    and

     

    


     

    U.S. BANK
NATIONAL ASSOCIATION,

     

    as
Trustee

     

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SERIES
1999-2 PAYOFF AND RELEASE AGREEMENT (the “Agreement”), dated as
of October 25, 2009, among SPIRIT OF AMERICA, INC., as Servicer  (the
“Servicer”),
CHARMING SHOPPES RECEIVABLES CORP., as Seller and Class B Purchaser (in such
capacities, the “Seller” or the “Class B Purchaser”),
CLIPPER RECEIVABLES COMPANY, LLC, as the Class A Purchaser (the “Class A Purchaser”),
STATE STREET BANK AND TRUST COMPANY (as successor to State Street Global
Markets, LLC), as Administrator for the Class A Purchaser (the Administrator”) and
U.S. BANK NATIONAL ASSOCIATION, as Trustee of the Charming Shoppes Master Trust
(the “Trustee”).

     

    WHEREAS,
the Seller, the Servicer, the Class A Purchaser and the Administrator are
parties to that certain Certificate Purchase Agreement, dated as of May 28, 1999
(as amended, the “Certificate Purchase
Agreement”);

     

    WHEREAS,
the Servicer and the Trustee are parties to that Series 1999-2 Supplement, dated
as of May 28, 1999 (as amended, the “Supplement”), to the
Second Amended and Restated Pooling and Servicing Agreement, dated as of
November 25, 1997 (as amended, the “PSA”).

     

    WHEREAS,
the Seller desires to cause the entire amount of the Class A Investor Interest
to be prepaid in full; and

     

    WHEREAS,
the Class A Purchaser and the Administrator have consented to such
prepayment.

     

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

     

    1.             DEFINITIONS

     

    Capitalized
terms used but not defined herein shall have the meanings given such terms in
the Supplement (as defined herein).  For purposes of this Agreement,
the following terms shall have the meanings given them below:

     

    “Accounts Purchase
Agreement” means the purchase agreement, dated as of August 12, 2009
among the Servicer, Spirit of America, Inc. and the Seller, as seller parties,
and World Financial Network National Bank, as purchaser.

     

    “Payoff Amount” means
the sum of the following amounts: (i) the Investor Interest, plus (ii) accrued
and unpaid interest on the Investor Interest through the Payoff Date, plus (iii)
the accrued and unpaid Non-Use Fees and Class A Additional Amounts in respect of
the Class A Investor Interest through the Payoff Date, plus (iv) $78,493.88,
representing the present value of the Non-Use Fee from the date of this
Agreement to the termination of the commitment under the Certificate Purchase
Agreement.

     

    “Payoff Date” means
October 30, 2009 or such later date as is designated in writing to the
parties hereto by the Servicer; provided, however, it is understood and agreed
that (i) the Payoff Date shall not be a Distribution Date and (ii) the Payoff
Date shall not occur prior to consummation of the transactions contemplated by
the Accounts Purchase Agreement.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    2.             THE PAYOFF AND
TERMINATION

     

    SECTION
2.1 Termination of
Obligations.  Subject to the terms and conditions of this
Agreement, each of the Trustee and the Class A Purchaser acknowledges and agrees
that, following receipt by the Administrator of the Payoff Amount on the Payoff
Date, (i) the Supplement, the Certificate Purchase Agreement and the Fee Letter
shall be terminated and (ii) neither the Seller nor the Servicer shall have any
further obligations with respect to the Supplement, the Certificate Purchase
Agreement, the Fee Letter or the Series 1999-2 Certificates, except for
obligations that, by the terms of the Certificate Purchase Agreement survive the
termination thereof.

     

    SECTION
2.2 Waiver; Calculation of
Payoff Amount; True-Up.

     

    (a) The
parties hereto agree to waive the refinancing provisions of Section 4(c) of the
Supplement.

     

    (b) No later
than 2:00 p.m. New York time two Business Days prior to the Payoff Date, the
Seller (or the Servicer on its behalf) shall request the Administrator to
provide it with the Payoff Amount.

     

    (c) Within
one Business Day following receipt of the notice described in Section 2.2(b)
hereof, the Administrator shall deliver to the Servicer, the Seller, and the
Class A Purchaser a statement of the Payoff Amount and the calculation of the
Payoff Amount and, in reasonable detail, the manner in which such amounts were
determined.

     

    (d) On the
Payoff Date, the Seller shall cause the Servicer or its designee to transfer the
Payoff Amount distributed on the Payoff Date to the Trustee for payment to the
Administrator in immediately available funds.  Upon receipt by the
Administrator of the Payoff Amount, the Administrator shall deliver the Investor
Certificates representing the Class A Investor Interest (the “Class A
Certificates”) to the Trustee for cancellation.

     

    3.             REPRESENTATIONS AND WARRANTIES OF
ADMINISTRATOR
AND CLASS A PURCHASER

     

    SECTION
3.1 Absence of
Liens.  Each of the Administrator and the Class A Purchaser
represents and warrants to the Servicer, the Seller and the Trustee that at the
time of delivery of the Class A Certificates to the Trustee described in Section
2.2(d), the Class A Certificates shall not be subject to any lien, pledge or
encumbrance created by the Administrator or the Class A Purchaser.

     

    4.             CONDITION
PRECEDENT

     

    SECTION
4.1 Consummation of the Accounts
Purchase Agreement.  It shall be a condition precedent to
requirement to transfer the Payoff Amount under Section 2.2(d) hereof
that the transactions contemplated by the Accounts Purchase Agreement be
consummated on the Payoff Date.  If the Servicer does not timely pay
the Payoff Amount to the Administrator on the Payoff Date as required by Section 2.2(d) and
the other provisions hereof, then the Seller shall

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    cause the
Servicer to make an additional payment equal to the interest on the delinquent
and unpaid Payoff Amount (or any applicable portion thereof) from the date such
payment was due until either (i) such amount is paid in full or (ii) the
Business Day following the first Business Day on which the Servicer shall have
irrevocably notified the Administrator that the transactions contemplated by the
Accounts Purchase Agreement will not be consummated, in either case at a rate
equal to the Class A Purchaser’s cost of funds as determined in a commercially
reasonable manner by the Administrator and certified to the
Servicer.  For the avoidance of doubt, if the transactions
contemplated by the Accounts Purchase Agreement are not consummated, the Payoff
Amount shall not be due.

     

    5.             MISCELLANEOUS

     

    SECTION
5.1 Further
Assurances.  Each of the Class A Purchaser and the
Administrator agrees, at the Seller’s expense, to promptly execute and deliver
all further instruments and documents, and to take all further actions, that may
be necessary or desirable, or that the Seller may reasonably request, to carry
out the terms of the Agreement.

     

    SECTION
5.2 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
5.3 No
Petition.  (a)  The Seller, the Servicer, the
Trustee, the Class B Purchaser, the Class A Purchaser and the Administrator, by
entering into this Agreement, hereby covenant and agree that they will not at
any time institute against the Trust, or join in any institution against the
Trust of, any bankruptcy proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Investor Certificates, this Agreement, the Certificate Purchase Agreement or the
Supplement.

     

    (b) The
Servicer, the Trustee, the Class A Purchaser and the Administrator hereby
covenant and agree that they will not at any time institute against the Seller,
or join in any institution against the Seller of, any bankruptcy proceedings
under any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Investor Certificates, this Agreement, the
Certificate Purchase Agreement or the Supplement.

     

    SECTION
5.4 Costs, Expenses and
Taxes.  The Seller agrees to pay on demand all reasonable costs
and out-of-pocket expenses in connection with the preparation, execution and
delivery of this Agreement and the other related documents, including, without
limitation, reasonable attorney fees and expenses for the Administrator and
Class A Purchaser.

     

    SECTION
5.5 Execution in
Counterparts.  This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.  Delivery
of an executed counterpart of a signature page

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.

     

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    IN
WITNESS WHEREOF, the parties have caused this Series 1999-2 Payoff and Release
Agreement to be signed by their duly authorized officers as of the date set
forth on the cover page of this Agreement.

     

    


    
      	
              SPIRIT OF AMERICA, INC.,
      as the Servicer

            
	 
      
	
              By:                                                                           

            
	
              Name:
      Eric M. Specter

            
	
              Title:   President

            
	 
      
	 
      
	
              CHARMING SHOPPES RECEIVABLES
      CORP., as the Seller and Class B Purchaser

               

            
	 
      
	
              By:                                                                           

            
	
              Name:  Eric
      M. Specter

            
	
              Title:    President

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              CLIPPER RECEIVABLES COMPANY,
      LLC, as the Class A Purchaser

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:                                                                           

            
	
              Title:                                                                           

            
	 
      
	 
      
	
              STATE
      STREET BANK AND TRUST COMPANY,

              as
      Administrator for the Class A Purchaser

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:                                                                           

            
	
              Title:                                                                           

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              U.S. BANK NATIONAL
      ASSOCIATION, not in its individual capacity but solely as the
      Trustee for CHARMING SHOPPES MASTER TRUST

            
	 
      
	 
      
	
              By:                                                                           

            
	
              Name:                                                                           

            
	
              Title: