exhibit101oct302009.htm


    
      
         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT
10.1

        

      

    


    FOURTH AMENDMENT TO PURCHASE
AND SALE AGREEMENT

     

    THIS
FOURTH AMENDMENT (this “Amendment”) dated as
of October 30, 2009 to the Purchase and Sale Agreement, dated as of November 25,
1997 and amended by the First Amendment thereto dated as of July 22, 1999, by
the Second Amendment thereto dated as of November 9, 2000 and by the Third
Amendment thereto dated as of May 8, 2001 (the “Purchase Agreement”),
is between, (i) solely with respect to the amendments described in Section 3(a)
of this Amendment, SPIRIT OF AMERICA NATIONAL BANK, a national banking
association (“Spirit”) and CHARMING
SHOPPES RECEIVABLES CORP. (“CSRC”) and (ii)
solely with respect to the amendments described in Section 3(b) of this
Amendment, WFN CREDIT COMPANY, LLC (“WFN SPV”) and WORLD
FINANCIAL NETWORK NATIONAL BANK (“WFNNB”).  Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
assigned in the Purchase Agreement.

     

    W I T N E
S S E T H:

     

    WHEREAS,
Spirit and CSRC have entered into the Purchase Agreement pursuant to which
Spirit transfers Receivables to CSRC from time to time;

     

    WHEREAS,
CSRC is a party to the Second Amended and Restated Pooling and Servicing
Agreement, dated as of November 25, 1997 (as amended from time to time, the
“Pooling and Servicing
Agreement”), among Spirit, CSRC and U.S. Bank National Association, as
Trustee (in such capacity, the “Trustee”), pursuant
to which CSRC transfers Receivables to the Trust from time to time;
and

     

    WHEREAS,
the parties hereto desire to amend the Purchase Agreement in certain respects as
set forth herein.

     

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

     

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

     

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

    


    
      	
               
      

            	
              “Purchaser Tangible
      Equity” means, at any date of determination, an amount equal
      to:

            


    

    


    (a)  the
Seller Interest, plus

    


    (b)  the
aggregate amount on deposit in all cash collateral accounts or spread accounts
established for the benefit of any Series or Class of Investor Certificates;
minus


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (c)  the
outstanding balance of the Subordinated Note; plus

    


    (d)  the
“Purchaser Tangible Equity” or other similar amounts for any other transactions
to which the Purchaser is a party.

    


    “Required Purchaser Tangible
Equity” means, at any date of determination, the sum of:

    


    (a)  the
product of (i) the Seller Interest, multiplied by (ii) the highest required
enhancement percentage then in effect for any outstanding Class of Investor
Certificates that was rated BBB (or an equivalent rating) by any of Moody’s,
S&P or Fitch at the time of its issuance, which shall be calculated as the
quotient (expressed as a percentage) of (x) the amount of Enhancement (including
any cash collateral account, the subordination of other  interests in
the Receivables) that is available or junior to such Class in covering
charged-off Receivables allocated to the related Series, divided by (y) the
Initial Investor Interest for the Series of Investor Certificates of which such
Class is a part; plus

    


    (b)  the
aggregate amount on deposit in all cash collateral accounts or spread accounts
established for the benefit of any Series or Class of Investor Certificates,
plus

    


    (c)  the
“Required Purchaser Tangible Equity” or other similar amounts for any other
transactions to which the Purchaser is a party.

    


    “Seller” shall mean
World Financial Network National Bank, and its permitted successors and
assigns.

    


    
      	
               
      

            	
              “Subordinated
      Note” shall mean a note substantially in the form of Exhibit F to
      the Purchase Agreement evidencing borrowings made by Purchaser from Seller
      pursuant to this Agreement.

            


    

    


    
      	
               
      

            	
              “Subordinated Note
      Maturity Date” is defined in Section 3.1(c)
      of this Agreement.

            


    

     

    “Subordinated Note
Rate” is defined in Section 3.1(c) of
this Agreement.

     

    “Transfer Date” is
defined in Section 1.2(a) of this Agreement.

     

    “WFN SPV” is defined
in Section
1.2(a) of this Agreement.

     

    “WFNNB” is defined in
Section 1.2(b)
of this Agreement.

    


    (b)           The
definition of “Reassignment” in Appendix A of the Purchase Agreement is hereby
deleted in its entirety.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (c)           The
last paragraph of Section 1.1 of the Purchase Agreement is hereby amended and
restated to read as follows:

     

    It is the
intention of the parties hereto that the conveyances of the Existing Assets, the
Receivables and the other Related Assets by the Seller to the Purchaser as
provided in this Section 1.1 be,
and be construed as, absolute sales or capital contributions, including for
accounting purposes to the extent consistent with generally accepted accounting
principles, without recourse except as explicitly provided herein, of the
Existing Assets, the Receivables and the other Related Assets by the Seller to
the Purchaser.  Furthermore, it is not intended that such conveyance
be deemed a pledge of the Existing Assets, the Receivables and the other Related
Assets by the Seller to the Purchaser to secure a debt or other obligation of
the Seller.  If, however, notwithstanding the intention of the
parties, the conveyance provided for in this Section 1.1 is
determined to be a transfer for security, then this Agreement shall also be
deemed to be a security agreement and the Seller hereby grants to the Purchaser
a security interest in all of the Seller’s right, title and interest in and to
the Existing Assets, the Receivables and the other Related
Assets.  Further,  to the extent the Seller retains any
interest in the Receivables now existing and arising from time to time in the
Accounts and the other Related Assets, the Seller hereby grants to the Trustee
for the benefit of the Investor Certificateholders, a security interest in the
Seller’s right, title and interest, whether now owned or hereafter arising, in,
to and under the Receivables now existing and arising from time to time in the
Accounts and the other Related Assets to secure the performance of all
obligations of the Seller under this Agreement, the Pooling and Servicing
Agreement and the other Transaction Documents and the rights of each Investor
Certificateholder to receive its share of the Series Investor Interest under the
applicable Supplement, interest on the Investor Certificates held by it at the
rate specified in the Supplement and any other amounts owed to it under the
terms of such Supplement and the other Transaction Documents.

     

    
      	
               
      

            	
              (d)

            	
              The
      following Section 1.2 is hereby added to the Purchase
      Agreement:

            


    

     

    “Assignment and
Assumptions.  It is understood and agreed that:

     

    (a) CSRC and
WFN Credit Company, LLC (“WFN SPV”) will enter
into an assignment and assumption agreement, substantially in the form of
Exhibit D hereto, under which CSRC will assign to WFN SPV all of CSRC’s rights
and obligations as Purchaser and WFN SPV will accept and assume such rights and
obligations.  From and after the date of effectiveness of such
assignment and assumption agreement (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 Purchaser occurring before such date,
CSRC shall be released from all obligations of the Purchaser, (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 Purchaser prior to the Transfer Date, and (iii)
except as the context shall require, references in this Agreement to Purchaser
shall be deemed to be references to WFN SPV.

     

    (b) Effective
as of the Transfer Date, Spirit and World Financial Network National Bank
(“WFNNB”) will
enter into an assignment and assumption agreement, substantially in the form of
Exhibit E hereto, under which Spirit will assign to WFNNB, all of Spirit’s
rights and obligations as Seller and WFNNB will acquire 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, Spirit
shall be released from all obligations of the Seller, (ii) Spirit shall cease to
be a party to this Agreement; provided that nothing herein shall relieve Spirit
of any liability for any of its actions (or omissions to act) as Seller prior to
the Transfer Date, and (iii) except as the context shall require, references in
this Agreement to Seller shall be deemed to be references to WFNNB.

     

    (e)           Section
2.3(f) of the Purchase Agreement is hereby amended and restated to read as
follows:

     

    Except as provided herein (including,
without limitation, Section 1.2 hereof)
and as provided in the Pooling and Servicing Agreement, 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.

    


    (f)           Section
2.5 of the Purchase Agreement is hereby amended and restated to read as
follows:

     

    Section
2.5  Removal
of Accounts.  Purchaser may remove Accounts from the Trust in
accordance with Section 2.7 of the
Pooling and Servicing Agreement.  On each day on which Accounts are
removed from the Trust pursuant to Section 2.7 of the
Pooling and Servicing Agreement, the Seller and the Purchaser may, but shall not
be required to, by mutual agreement, remove Accounts from the operation of this
Agreement (the “Removed
Accounts”).  The Seller agrees to provide to Purchaser such
information, certificates, financing statement, 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 the removal of
Accounts.

     

    (g)           Sections
3.1(b) and (c) of the Purchase Agreement are hereby amended and restated to read
as follows:

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (b)           The
“Purchase
Price” for the Receivables (including Receivables in Additional Accounts)
to be conveyed to Purchaser under this Agreement that come into existence on or
after the Transfer Date shall be payable on each Business Day on which such
Receivables are conveyed by Seller to Purchaser in an amount equal to 100% of
the Principal Receivables so conveyed, adjusted from time to time with respect
to Principal Receivables originated hereafter to reflect such factors as Seller
and Purchaser mutually agree will result in a Purchase Price determined to
approximate the fair market value of such Principal Receivables.  If
and to the extent that Purchaser shall not have funds available to pay Seller
the Purchase Price for the Receivables transferred on any day, an amount equal
to the portion of the Purchase Price for such Receivables for which Purchaser
shall not have funds shall be deemed to be a borrowing by Purchaser from Seller
under the Subordinated Note in the amount of such deficiency; provided that no
borrowing may be made under the Subordinated Note if, after giving effect to
such borrowing, Purchaser Tangible Equity would be less than Required Purchaser
Tangible Equity; and provided, further, that Seller
may, in its discretion, contribute Receivables on any Business Day and the
Purchase Price of such Receivables shall be deemed to be a capital contribution
from Seller to Purchaser.   Seller is hereby authorized by
Purchaser to endorse on the schedule attached to the Subordinated Note (or a
continuation of such schedule attached thereto and made a part thereof) an
appropriate notation evidencing the date and amount of each borrowing
thereunder, as well as the date and amount of each payment made with respect
thereto; provided that the
failure of any Person to make such a notation shall not affect any obligations
of Purchaser thereunder.

    


    (c)           The
terms and conditions of the Subordinated Note and all borrowings thereunder
shall be as follows:

    


    
      	
               
      

            	
              (i)

            	
              All
      amounts paid by Purchaser with respect to the Subordinated Note shall be
      allocated first to the repayment of accrued interest until all such
      interest is paid, and then to the outstanding principal amount of the
      Subordinated Note.

            


    

    


    
      	
               
      

            	
              (ii)

            	
              The
      outstanding principal amount of the Subordinated Note shall bear interest
      at a fixed rate per annum agreed upon by Seller and Purchaser from time to
      time from the Transfer Date, calculated based on a 360-day year
      consistently of twelve thirty-day months (such rate as in effect from time
      to time, the “Subordinated Note
      Rate”).  Interest on the Subordinated Note shall be
      payable on the 15th day of each calendar month falling after the Transfer
      Date, or if the 15th is not a Business Day, the next succeeding Business
      Day (each such date, an “Interest Payment
      Date”).  If on any Interest Payment Date, the amount of
      funds available to pay interest on the Subordinated Note is insufficient
      to pay any amount

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    due under
the Subordinated Note, then interest shall be payable only to the extent funds
are available thereof.  All interest in the Subordinated Note that is
not paid when due pursuant to this paragraph shall be payable on the next
Interest Payment Date on which funds are available therefor and all such unpaid
interest shall accrue interest at the Subordinated Note Rate until paid in
full.

    


    
      	
               
      

            	
              (iii)

            	
              Purchaser
      may at its option, prepay the Subordinated Note at any time and from time
      to time; provided that in no event shall Seller or any holder of the
      Subordinated Note have any right to demand any payment of principal under
      the Subordinated Note prior to the date that is one year and one day after
      the latest occurring Series Termination Date for any Series of Investor
      Certificates (the “Subordinated Note
      Maturity Date”).

            


    

    


     

    (h)           Schedule
I and Schedule II to this Amendment are hereby added to the Purchase Agreement
as Exhibit D and Exhibit E respectively, thereto.

     

    (i)           Schedule
III to this Amendment is hereby added to the Purchase Agreement as Exhibit F
thereto.

     

    (j)           Exhibit
C of the Purchase Agreement is hereby deleted in its entirety and marked as
“[reserved]”.

     

    (k)           Clauses
(a) and (b) of Section 7.4 of the Purchase Agreement are hereby amended and
restated as follows:

     

    (a) in
the case of the Seller and the Servicer, to World Financial NetworkNational Bank, 3100 Easton Square Place,
Columbus, OH  43219,Attention:General Counsel, (b) in the case of the
Purchaser, to WFN Credit Company, LLC,3100 Easton Square Place, #3108, Columbus, Ohio
43219.

     

    SECTION 2.  Change of Address and Waiver
of Notice.   Effective as of the Transfer Date, pursuant
to Section 2.3(j) of the Purchase Agreement, WFNNB, as Seller, hereby designates
the following additional addresses as location of records concerning the
Receivables:

     

               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. Amendment
Date.

     

    (a) The
amendments set forth in clauses (d), (e) and (h) of Section 1 shall
become effective on the date when all of the following shall have
occurred:  (i) the Trustee receives executed counterpart signatures
pages of this Amendment from Spirit and CSRC and (ii) an Opinion of Counsel of
CSRC pursuant to Section 7.1(a) of the Purchase Agreement has been delivered to
the Trustee.

     

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

     

    SECTION
4.  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.  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
6.  Ratification of the Purchase
Agreement.  From and after the Amendment Date, each reference
in the Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”
or words of like import, and references to the Purchase 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 Purchase
Agreement as amended hereby.  Except as otherwise amended by this
Amendment, the Purchase Agreement shall continue in full force and effect and is
hereby ratified and confirmed.

     

    SECTION
7.  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 executed as
of the date first above written.

     

    Solely
with respect to the amendments described in Section 3(a) of this
Amendment:

     

    
      	
              SPIRIT
      OF AMERICA NATIONAL BANK

            
	
              By: _____________________________                                                   

            
	
              Name:  Eric
      M. Specter

            
	
              Title:    Chairman
      of the Board

            
	 
	 
	
              CHARMING
      SHOPPES RECEIVABLES CORP.

            
	
              By: _____________________________                                                   

            
	
              Name:  Eric
      M. Specter

            
	
              Title:    President

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Solely
with respect to the amendments described in Section 3(b) of this
Amendment:

     

    


    


    
      	
              WFN
      CREDIT COMPANY, LLC

            
	 
      
	 
      
	
              By:______________________________                                                                           

            
	
              Name:

            
	
              Title:

            
	 
      
	 
      
	
              WORLD
      FINANCIAL NETWORK NATIONAL BANK

            
	 
      
	 
      
	
              By: ______________________________                                                                          

            
	
              Name:

            
	
              Title:

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              Acknowledged
      and agreed with respect to Section 2

            
	
              of
      this Amendment:

            
	 
      
	
              U.S.
      BANK NATIONAL ASSOCIATION, as Trustee

            
	 
      
	 
      
	
              By:_______________________________________

            
	
              Name:

            
	
              Title:

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


        
          SCHEDULE
I

        

      

    


    EXHIBIT
D

     

    [WFN SPV
Assignment and Assumption Agreement]

     

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


        
          SCHEDULE
II

        

      

    


    EXHIBIT
E

     

    [WFNNB
Assignment and Assumption Agreement]

     

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


        
          SCHEDULE
III

        

      

    


    EXHIBIT
F

     

    [SUBORDINATED
NOTE]